EUROPEAN ACADEMY OF LEGAL THEORY
BRUSSELS
MASTERS PAPER
LL.M. (LEGAL THEORY)
1998-99
SUCCESS OF
FEMINIST JURISPRUDENCE IN INDIA:
A CRITICAL ANALYSIS
FROM THE POINT OF VIEW OF IMPLEMENTATION
SUPERVISED BY
Prof. Marie-Claire Foblets
Dept. Sociale en Culturele Antropologie
K. U. Leuven, Tiensestraat 102,
B – 3000 Leuven.
PRESENTED BY
Nidhi Gupta
424, Sector 7, Malviya Nagar,
Jaipur – 302 017, India.
e-mail: nidhi04@hotmail.com
EUROPEAN ACADEMY OF LEGAL THEORY
BRUSSELS
MASTERS PAPER
LL.M. (LEGAL THEORY)
1998-99
SUCCESS OF
FEMINIST JURISPRUDENCE IN INDIA:
A CRITICAL ANALYSIS
FROM THE POINT OF VIEW OF IMPLEMENTATION
SUPERVISED BY
Prof. Marie-Claire Foblets
Dept. Sociale en Culturele Antropologie
K. U. Leuven, Tiensestraat 102,
B – 3000 Leuven.
PRESENTED BY
Nidhi Gupta
424, Sector 7, Malviya Nagar,
Jaipur – 302 017, India.
e-mail: nidhi04@hotmail.com
CONTENTS
1. INTRODUCTION *
2. WOMEN IN CONSTITUTIONAL FRAMEWORK *
2.1 FUNDAMENTAL RIGHTS AND WOMEN *
2.2 FUNDAMENTAL RIGHTS AND PERSONAL LAWS *
2.3 SPECIAL PROTECTION UNDER DIRECTIVE PRINCIPLES OF STATE POLICY *
2.4 POLITICAL RIGHTS FOR WOMEN - 73rd AND 74th AMENDMENTS *
3. MARRIAGE, DIVORCE ADOPTION AND GUARDIANSHIP *
4. INHERITANCE AND MAINTENANCE *
5. UNIFORM CIVIL CODE : WOMEN VERSUS RELIGIOUS PERSONAL LAWS *
6. CRIMINAL LAWS AND WOMEN *
6.1 DOWRY DEATHS *
6.2 Laws Relating To Cruelty and Dowry Deaths *
6.3 SEXUAL HARASSMENT AND WORKING WOMEN *
6.4 RAPE *
7. CONCLUSION *
BIBLIOGRAPHY *
"A woman is never fit for independence. In her childhood her father protects her, in youth her husband and in old age her sons." This statement was made by Manu, the first codifier of law in ancient India. Tulsidas, author of great Indian epic Ramcharitmanas, which forms the basis of philosophy for vast sections of Hindu society in the country classified women in the group of 'idiots', 'illiterates', 'low castes' and 'animals'. Such utterances are ironical for, women occupied a very important position, in fact superior to man in ancient India. A plethora of goddesses were created who enjoyed equal status with their husbands. Kali, the most significant goddess of Hindu pantheon epitomizes powers of women in fact the absolute power of any kind. The concept of 'Ardhnareshwara' depicts God as half man and half woman, which is a physical representation of the idea that God is beyond gender.
It is not strange that such a dichotomy of thought apparent in contemporary context manifests in the form of paradoxical status of women in India. On one hand joint participation of husband and wife is mandatory to perform any religious ritual for Hindus, on the other hand some wives are burnt by their husbands and family members for they could not bring a purse, large enough for the groom's family (system named as dowry).
A female child is "put to sleep" as soon as she is born by her mother or father or even grandmother by feeding poison or slipping a buck of paddy into her milk so that her slander throat would be split. And all this is done out of "love" to save her from poverty and misery she may have been inflicted to at grown up stage. Such cases may not really be the norm uniformly applicable to the country but it is horrifying to see that they happen.
All the above description narrates mainly the position of Hindu women in Indian society but it is reflective of the discriminatory and paradoxical phenomenon affecting almost every woman irrespective of religion, caste or class. Discrimination against women in India is prevalent in every sphere of life and most women experience some sort of disadvantage. In contemporary India, which is almost an antithesis to ancient India the society continues to discriminate against women under the guise of protecting religiosity and plurality of ethnicity.
The religiosity and ethnicity remain the toughest enemies of women, which place women in a subordinate position, allowing men to control the access of women to material resources as well as controlling their sexuality. Ironically in a country where philosophy of a woman's happiness as an ultimate secret of overall happiness is professed, most heinous of crimes like bride burning or dowry deaths are the harsh realities of women's lives. Under influence of modernization and industrialization more and more women are carving out distinct niches for themselves in public sphere balancing it with their traditional roles in domestic sphere. Given the almost static structural pattern of society this dynamism of women does expose them to dangers of public life arising apparently as a form of male retaliation for perceived encroachment in their domain, relegating women to vulnerable and consequently disadvantaged position. All this, despite the rhetoric of a modern nation state of upholding the dignity of women in every manner.
It is rather interesting to note that women's movement in India dates back to period of subservient status of the people under colonial rule. The movement began mainly with securing social rights for women. It had in fact laid the foundation stone of the citadel that feminist movement in India has shaped, which has place for all women irrespective of religion, caste, economic or social status. The strong precincts of this citadel allowed the diversification of women's movement. As a result, since last two decades in addition to various societal, economic and political causes various laws have attracted wrath of this movement for perpetuating patriarchy and gender bias. This gradually resulted into emergence of feminist jurisprudence - as a distinct category of feminist movement in late seventies. This relatively new branch now enjoys formidable presence in feminist movement by unveiling the insidious nature of various laws ostensibly meant for ameliorating the status of women.
Fortunately now many things are done to address the issues relating to women and their rights amidst all peculiarities and complexities, though it is difficult to place these efforts under any particular stream of feminist jurisprudence, which are predominantly of western origin.
This study was thus taken up as a part of the curriculum of the master's programme of legal theory, with a view to explain Indian legal situation concerning women in a wide perspective, so that India's position and contribution in the success of feminist jurisprudence can be well comprehended.
The study is mainly based on the contemporary legal and judicial writings. Most of the observations and opinions are based on authors own perception of reality concerning women in India, having lived it personally or derived through secondary methods. The implementation aspect of laws is analysed through a series of judicial decisions at respective places.
An attempt has been made to put forward a balanced view of legal feminism in India. This being the underlying aim, the study ananlyses various legal provisions and the dynamism set in the system with the help of judicial pronouncements backed by societal pressure. Various constraints of the whole system have also been highlighted, with the purpoted justification for the apparent loopholes in laws.
At many places different terms are used in the original Hindi or Urdu languages (indicated in italics) but an attempt has been made to adequately explain them, in footnotes through explanations and with references for further study.
The status of women in India is reviewed under three heads i.e. constitutional framework, under personal laws and under the provisions of criminal laws which for the sake of clarity and specificity of the issue are divided into seven chapters. First chapter of Introduction deals with an overview of the study, various aspects of feminist jurisprudence in general and analysis of its relevance for India.
Second chapter deals with the Constitutional provisions and situation of women under them. Attempt is to analyze how far the special equality mandate of Constitution of India has worked for the cause of women. This is followed by an analytical discussion on the position of Hindu, Muslim, Parsee and Christian women under their respective religious laws. This is covered in two chapters. Laws relating to Marriage, Divorce, Adoption and Guardianship are discussed in chapter 3 and laws related to inheritance and maintenance provisions for women are discussed in chapter 4. Chapter 5 throws light on the desirability and possibility of enacting an uniform civil code in India replacing religious personal laws of different communities. This uniform code is considered as one of the alternatives to end the opression and injustice inflicted on women under the guise of protecting religion and traditions. Lastly, provision of criminal laws covering dowry deaths as a specific form of domestic violence , sexual harassment for working women and rape are discussed in chapter 6. Conclusions of the study are enumerated in the chapter 7 which is followed by bibliography.
Through out the work the attempt is to analyze the implementation part of these laws and how far they are successful in achieving their goal of empowering and emancipating women.
Feminist jurisprudence represents the diversity of feminist philosophy and theory. Notwithstanding differences in approaches, all feminists share the belief that "women are oppressed or disadvantaged in comparison with men and that their oppression is in some way illegitimate or unjustified. Under the umbrella of this general characterization there are, however, many interpretations of women and their oppression, so that it is a mistake to think of feminism as a single philosophical doctrine. Just as there are diverse images of liberation, so there are a number of feminist philosophies, yoked together not so much by their particular claims or prescriptions as by their interest in a common theme.
Feminist activism has had a major impact, besides other fields, on many areas of law. Legal feminism which originated as distinct category only in second half of this century now enjoys a formidable presence in feminist movement worldwide.
The liberal feminism also labeled as first wave feminism was based on emancipatory theory and sought to dismantle the positive legal barriers that had denied women equal opportunity with men. This strand of thought supports the values of liberal jurisprudence as imputed to law, but identified a discrepancy between those liberal values and legal practice, such that women are accorded parity with men. The theory behind those goals was that the rights of individuals as traditionally understood in a liberal society should transcend gender differences. If follows that law must be persuaded to apply these standards more rigorously in case of women or that liberal values must be revised to recognise gender as a source of social injustice. The main objective is to give women genuine, as opposed to nominal, equal rights or, where their special social situation demands it, special rights.
After this theory emerged illiberal feminist legal theory, also known as "radical feminism", during 1980s. It urges women to renounce traditional notions of right and justice, now viewed as perpetuating male dominance. Some of the radical feminists charge that the reforms achieved by "equality feminists" have dismantled protections beneficial to women while doing nothing to eliminate their disadvantages. They too note the discrepancy between the liberal values imputed to law and law's treatment of women but recognises the limitations of attempting to close the gap between liberal jurisprudence and legal practice either by making law apply legal principles more scrupulously in the area of gender or by revising liberal principles.
For radical feminists, the key concept is "patriarchy", the male dominated social structure. They argue that liberal jurisprudence can make no impact on law's treatment of women so long as categories, such as crime or family law, and legal concepts such as provocation or marriage, embody male norms and accordingly fail to address women's experiences. It follows that such legal categories and concepts must be transformed to address women's social position and experiences. They attack the liberal principles as neutrality of law, equality and individual autonomy for their "patriarchal" roots. Mackinon, a main protagonist of this stream asserts, "the greater the prima facie neutrality of law, the more effectively 'neutrality' works as a key mechanism for masking the male domination for example by requiring women to fit into an economic system which denies them substantive equality." Law is seen as an instrument to "change the distribution of power", which requires not equal treatment but "an asymmetrical approach that adopts the perspective of the less powerful group with the specific goal of equitable power sharing among diverse groups".
Thus the latest trend can be summarized as questioning the desirability of gender equality as a feminist goals as well as capacity of law reform to achieve that goal.
Feminist Jurisprudence or legal feminism in India can be said to have emerged as a distinct category of feminist movement in late seventies as a reaction towards some of the overtly biased judicial decisions. Before that the origination of women's movement can be traced back to the period of subservient status under colonial rule. Like elsewhere in world, movement had focused on the reform of women's social position and in India it was especially aimed at eradicating some of the traditional but evil practices like 'Sati', 'Devdasi' system, child marriage, seclusion of widows etc.
These reforms under colonial rule were sought through recourse to law since attempts were made to root out the practices against conventional and deep rooted beliefs of the society. Next major attempt for reforms came through immediately after independence, where in Government made considerable and revolutionary reforms in laws relating to Hindus towards improving the status of women although, these measures were required in the laws of every religious community. The Hindu society was experiencing many social reformist which helped the government to modify and reform Hindu law while due to many other considerations personal laws of minority communities were left undisturbed. Thus in both instances Law, which is an important institution in most contemporary societies was used as a tool for social reform. Now, more than five decades after independence, at the turn of 21st century, when role and efficacy of law in empowerment of women and in social change in general is questioned, law is still considered and used as one of the important mechanisms to uphold and support the cause of women in India.
The new feminist theory advocates for looking beyond goals of gender equality and related rights. Feminist analyses of law usually take the form of pointing out that laws as enacted and implemented by state agencies are biased against women and are in favour of men. It is also claimed that the creation of a 'new corpus' of rights for women ignores the ideological power of law to mask social reality and obstruct social change. In view of the demonstrated ineffectiveness of legal rights in ending oppression of women, some western feminists and legal scholars are now abandoning rights based claim altogether. There exists a considerable literature documenting how law upholds the division between the public and private spheres and is thus disadvantageous to women. The liberal feminist efforts to make the state responsible for welfare services like child care and health care as means of ensuring substantive equality to women, attract the charge that these measure will strengthen the hold of the state on women. The argument, briefly, is that formal legal intervention by the state in the personal life of people weakens the family bonds and makes individuals more susceptible to state control.
Considering all these contentions it can be said that there is no consensus about what needs to be done. All the above kind of discussions tend to make the whole debate regarding women's oppression very abstract and theoretical , taking it far away from reality, especially in Indian context. Feminist objections to gender equality or negative role of law are not of much relevance in India. Feminist authors who point to the drawbacks of law reforms all live in societies in which women have already gained formal equality. Their concerns have shifted beyond law reforms and legal rights only after they had virtually achieved legal equality with men. But the first wave feminism had started everywhere demanding legal equality with men. Just as first wave feminist could not contemplate kind of demands made by second wave feminist, so in Indian context, women who do not even have a parity of rights regarding divorce, maintenance, custody, guardianship, inheritance and like matters can not realistically be expected to make demands for the autonomy to control their sexuality or the right to the inviolability of their bodies. This almost equal legal status of women in west permits them to focus on alternative strategies for ending the oppression of women. They can afford to reject law reform if it no longer yields sufficient gains.
In India, however, even after five decades of independence, women still do not have equal legal rights. Most women often do not have the option to step out of oppressive family situations and therefore cannot afford to ignore law reform as one of the strategies in their struggle against oppression. Performing their role, women do bear child but a large number of them have no choice regarding how many and when. Concern for a women coming from modernized western nation may be, "my son would grow up and perpetuate patriarchy" but for a woman in India, concern is "what if she is not able to bear a male child" or " how can she keep her female child alive?".
Thus, still largely under first wave of feminism, legal equality is the major concern. Law can not be rejected as a tool of reform in spite of its limitations. Nevertheless it is important to note that while reality for women in India is much different from that of west the demands like those made by second wave feminists are not altogether absent. Demands for rejecting traditional norms of femininity and sexuality, claims for inviolability of the body for every woman, change in legal concepts and legal categories to deal with problems specific to women have also gained ground. The fact that women are trying to eke out balance between the forces of modernization and traditional values adds to the peculiarity of the situation, as India, especially the urban areas are largely under the influence of both kinds of so called waves of feminisms, where law as a social reformer can neither be accepted nor rejected in its totality.
Many arguments and counter arguments are offered regarding efficacy of law in improving status of women in the society. Therefore as a preliminary it is important to briefly discus law reform and discrimination against women, analyze the role and necessity and efficacy of law as a social reformer and the role of the State in reforms related to personal and religious laws.
This work intends to examine the role law plays in perpetuation or elimination of discrimination against women. It is imperative to note that like in many other contemporary societies, especially those which were under colonial rule, law is an important institution as it regulates, controls and in other ways pervades almost every aspect of people's lives. It has a double significance for women – it may help in maintaining discrimination or it may modify or mitigate discrimination. In India with three fold distinction as against two in the kinds of law i.e. Religious Laws, Civil Laws and Criminal Laws, the situation is much more complex. The law as well as state are competently playing the above mentioned dual role by professing highly acclaimed secularist ideals of equality and dignity of individual, while tolerating blatant discrimination against women in personal laws, in pursuance of its policy of non interference in religious matters of different communities.
The particular situation of women in India leads to the question whether law reform has any use for majority of them. Most rural women and many urban dwellers may spend all their lives without coming into contact with the state legal system or being even aware of the same. Thus it is often argued that whether the state legal system upholds gender equality or not makes little difference to their lives. But the argument that legal rights are only marginally useful because very few Indian women can enforce them, is not necessarily a valid reason for not reforming laws. On the contrary, this should be an argument for increasing their access to legal system. Moreover, there is no justification for denying the legal equality to those who have access just because the majority of women can not enforce them.
Legal rights by themselves may not change the economic system or structural inequalities but in some situations they do transform the economic and social position of women. Every small gain helps women overcome some aspect of discrimination and as correctly pointed out "even crude legal instruments can be important to weak and disadvantaged groups in society and can give them at least some purchase on political process."
Any project of law reform in India is confronted with the uncomfortable knowledge that although state has introduced a majority of reforms in Hindu Personal Law (ostensibly to improve the position of women), the most glaring examples of women's oppression still come from the Hindu Community. The frequency of dowry deaths, child marriages, girl infanticide, female foeticide and continued acceptance of Sati, where the widow is burnt alive on the pyre of her husband are the grim reminders of the extent of Hindu women's subjugation and the seeming inability of the law to challenge it.
Another important objection against law is law's alleged male bias in spite of its rhetoric of neutrality, which is ultimately used by men to subjugate women. But exclusive emphasis on law as a coercive agency hinders appreciation of the significant part law plays in achieving consensus around various issues. Therefore instead of dismissing law reform as a means of achieving legal equality for women, it is more productive to realize the limitations of law and adjust that expectations from the legal system that it by itself will be sufficient to change society and end women's oppression. State enacted laws are limited by a number of factors in what they can achieve in terms of social reform. Legal rights operate within the context of given politico economic system. Law reform may not remove the structural inequalities of the system which make it difficult for individuals to realize those rights. Furthermore, certain laws though appearing to be lacunose, are intentionally so framed keeping in mind social reality and limitation of law in changing attitudes and values.
Thus while law may not be useful in changing people's convictions or values, it can function as a persuasive norm i.e. rather than prohibiting certain behavior in absolute terms , law may permit certain behavior, by providing facilities for a pattern of behavior different from the practices followed until then, the legislator does not rely on coercion but on the availability of an alternative which provides the meaningful opportunity for change. The availability of possibility which was previously unthinkable or not thought about transforms the psychology of the subjects, as well as the legal possibilities. Their expectations and tolerance alter.
Thus one measure of effectiveness of law can be a gradual change in social attitudes, may be a partial change in the actual behaviors of some perhaps of the elite of the society – who can in turn serve as models to be emulated. Such transformation in the behavior of people, if widely achieved, can in turn lead to structural transformation of institutions as well. So even if law can not bring about any actual change in behavior it can serve as a symbolic function.
Symbolic legislation can be of liberating value as it can provide a focus around which forces of change can mobilize. Symbolic laws, therefore may not directly bring about social change but bring about conditions conducive to such change. The Dowry Prohibition Act, 1961 as initially enacted did not result in any prosecution but its existence on statute books helped focus attention on the widespread prevalence of practice of dowry. Ineffectiveness of this law generated discussion and provided the necessary starting point for further action, including efforts to suitably modify law and create distinct categories in supplementary laws.
Having established the efficacy of law as reformer now the focus can be shifted to the role of religious personal laws on the status of women. It is also imperative to discuss the role of state in reforming these laws and thus test the contention that state only mystifies the law and perpetuate patriarchy.
Religion plays the most important part in lives of people of India especially women. More so, because for the majority of Indian women, family life continues to be an important aspect of their existence. Because of lack of adequate education and vocational training facilities as well as scarcity of opportunities for wage employment, for most of the Indian women there is no meaningful alternative to family. Consequently, laws governing family relations have a greater significance for majority of women in India as compared to laws governing other civil matters.
Family relations in India are governed by religious personal laws. The four major religious communities: Hindu, Muslim, Christian and Parsee, each have their separate personal law. They are governed by their respective religious laws in matters of marriage, divorce, succession, adoption, guardianship, maintenance and inheritance. They all share the similarity of women having less rights than men in corresponding situations. That in itself is not surprising because religion in every part of the world tend to discriminate against women and religious laws are reputedly based on religious rules and doctrines.
The policy of non interference in the religious personal laws of various communities adopted by British government during colonial rule is followed till date by government of independent India. India had accepted its Constitution in 1950, wherein it guarantees equality to everyone. The state is expressly prohibited from discriminating on grounds of sex. The Constitution declares void all laws that are inconsistent with its provisions regarding Fundamental Rights, yet personal laws that discriminate against women are still being applied more than five decades after the commencement of the Constitution.
Theoretically, State is tolerating this discrimination because India is a secular state and the Constitution guarantees the 'freedom of religion' to every citizen as well as minority communities. Though Hindu Personal Law has been extensively reformed to give equal rights to Hindu women, the personal laws of other minority communities are left untouched because leaders of these communities claim that their laws are inviolate and there is no demand from the community for change. That the constitution is ambiguous about the nature of religious personal laws is indicated by the fact that the arguments both in favour of as well as against any reform in personal law are both based on the Constitution. This ambiguity permits state to act discrepantly with respect to essentially similar claims of different communities.
A nation ripped with communal riots emerging after partition on religious grounds and composed of apparently hostile communities provided sufficient justification to state for permitting contradictory claims. Thus, the necessity of national consolidation and ensuring security to minorities outweighed the demands of personal law reforms for legal equality of women. Unfortunately, five decades later too same kind of arguments are forwarded by the State for not initiating any reforms.
Though the continued existence of various religious personal laws may not serve any specific purpose for the state but certainly the political cost of reform may be too high for the government making such attempt. Apparently women as a class or as a group do not pose sufficient threat to any government to undertake sufficient measure to improve their position.
Thus, the state indeed has perpetuated patriarchy and added to the oppression of women through its ambiguous policies. In spite of this state is considered to be the only institution which can be relied upon for reforms.
This peculiar situation is due to the fact that whatever reform so far has been made possible even for Hindu women were through state only. Besides, by reforming Hindu religious and personal laws extensively State has established its authority even with in the domain of religious laws. Reliance on State for reforms is also necessitated by five decade long experience which reveals that religious leaders want to perpetuate status quo and would not like to invite any kind of threat to power structures by empowering women in any manner. State might have acted as patriarchal ally to large section of population but some of the organs of the same state have also come to the rescue of the women. It. has rightly been observed, " The state is not a pre- given instrument of oppression, but is a site of struggle and to some extent responsive to concerted pressure".
In case of India though for multiple reasons state has been supporting patriarchy but for past few years a change in one of the organs of the state- judiciary – can be discerned. On few occasions the political government too has succumbed to the pressure and has made significant concessions, but largely in case of legislative silence judiciary is performing the much desired role. Again, It is not the whole judiciary which is conscientized and gender sensitized , still the trend is encouraging, perhaps also sufficient to keep the optimism alive.
Though the success for feminist jurisprudence in the field of family laws is far from satisfying but it certainly has booked itself some victories in the field of criminal laws. Introduction of new categories like dowry deaths, cruelty and sexual harassment along with the amendments in some of the important legal concepts like reversal of presumption of innocence for accused mainly in case of dowry deaths and in case of rape in limited sense are some of the long awaited changes.
The Constitution of India, Supreme law of the land which was adopted by the nation on 26th January 1950 has as its ideals
Justice – Social, Economic and Political
Liberty – of thought, expression, belief, faith and worship
Equality – of status and opportunity.
The Constitution ordains these ideals to be secured to every citizen of India. Realisation of these ideals is sought to be achieved through justiciable Fundamental Rights and non-justiciable Directive Principles in part III and Part IV of the Constitution respectively. In addition to provisions which are equally applicable to every individual, the Constitution is comprised of provisions, which have special relevance for women, who are disadvantaged for no other reason but their sex. The Constitution has also accorded special recognition to the dignity of women under art. 51-A , which lays down Fundamental Duties for every citizen. It has been provided that every citizen shall renounce practice derogatory to women.
Incorporation of equality in the Constitution, and measures to enforce this equality is acclaimed as the most important contribution of the state and its machinery towards the cause of women's empowerment, not only in India but in most of the written Constitutions of other nations. Article 14 of the Indian Constitution ensures to every person in its territory "equality before law" and "equal protection of laws". But this kind of "neutral equality mandate" is a target of vehement attack by feminist groups for its patriarchal roots and for perpetuating male dominance.
Attack on this "neutral equality mandate" by feminists worldwide can be nothing but highly justified by feminist groups in India given the socially and economically disadvantaged position of women in Indian society. The fact that Constitutional concept of equality pays only lip service to the cause of women has been taken care of to some extent in the Indian Constitution by incorporation of Art.15 clause (3).
Article 15 expressly prohibits discrimination the basis of sex but at the same time it has allowed positive discrimination by providing that "Nothing shall prevent the state from making any special provisions for women".This provision validates legislative enactment especially for women as well as specific provisions in various statutes meant for positive discrimination for women. This equality ideal is further substantiated with Art 16, which prohibits discrimination in matters of employment and enjoins equality of opportunity for all citizens.
During recent years the judiciary has recognised sex based discrimination constitutionally valid on the basis of peculiar condition if it protects the interest of woman. Article 14 of the Constitution prohibits class legislation but does not prohibit reasonable classification. Thus, it recognises women as a class and court has declared that women as a class are different from men, hence the acts meant to remove disability attached to women in various traditional laws is not violation of constitution.
Following the same principle of treating women as class keeping in view their special circumstances, special provisions for women in matters of admission in colleges have also been allowed.
The traditional distinction of spheres for men and women in to private or domestic sphere and public sphere respectively has not blurred with the increasing number of women in public sphere. The situation is normally more difficult for women since they are required to cope up with the responsibility of home as well as work place. This puts women to a disadvantage since employers do not consider women as efficient workers.
With its progressive attitude courts have tried to check this kind of discrimination against women in matters of employment. In C.B. Muthamma v.Union of India , a provision of Indian Foreign Service Rules 1961, which required permission before marriage and denial of right to employment to married woman in government was declared discriminatory by the Supreme Court on ground of sex.
Another important reason for discrimination against women is their special circumstances by virtue of their child bearing capacity. Every expectant working mother has fears about maintaining her job or maintaining the same capability to achieve the professional success. In a landmark judgement acclaimed as historical in history of women's rights, the service regulations of Air India employees were found violative of Art.14. The rules provided that an air hostess has to resign from service (a) upon attaining the age of 35 years or (b) on marriage, if it takes place within four years of service or (c) on pregnancy. Declaring clause (c) as unconstitutional the judge observed, "termination of services in such circumstances is not only callous and cruel act but an apex insult to womanhood". It was clearly laid down that pregnancy should not be treated as a disability to put women to any disadvantage.
Championing the cause of women for protecting against discrimination of any kind in matters of employment is the very recent judgement recognising sexual harassment at work place conducive to discrimination. This case has been discussed in detail in chapter concerning sexual harassment. It is important to note here that court recognised "that each incident of sexual behavior results in the violation of fundamental rights of "Gender Equality" and "Right to life and Liberty". It is clear violation of rights under Art.14,15 and 21. The court has issued guidelines for all employers to ensure healthy work environment for women to avoid any disadvantage to them by reason of sex.
Provisions of law in favour of women are conceded to as "Permissive classification". Thus provisions of Indian Penal Code (IPC) and Criminal Procedure Code (CrPC) favoring women are not considered violative of equality provisions. Sec. 354 of the IPC which makes assault or use of criminal force with intent to outrage the modesty of a woman (but does not include man within the protection of section) is not violative of equal protection clause. The classification made in favour of wives and for those deserted by their husbands is also not arbitrary. This can not be questioned on the ground that the section provides for maintenance of wife and contains no similar provision in favour of men as against women.
Section 497 of Indian Penal Code which provides that woman is not to be punished as an abettor to a man charged with offence of adultery was challenged in famous case of Yusuf Abdul Aziz v. State of Bombay . The challenge was repelled by the High Court observing that differential treatment is not based on ground of sex but on ground of special position of women in India. Similarly section 497 of CrPC which prohibits release of a person accused of a capital offence on bail except women and children under 16 years of age and sick man was upheld by the court in Smt.Choki v.State of Rajasthan . Keeping pace with the progressive trend court has issued instructions to executive authorities on many occasions for better provision for women. In Sheela Barse v. State of Maharashtra, after ascertaining that the women prisoners are subjected to ill treatment or torture the court directed the state government to provide adequate protection to women prisoners.
Article 21 of the constitution ensures the 'Rights to Life and Liberty' for every individual. Indian judiciary has successfully played a creative role by expanding the scope of right of life. A large number of unenumerated rights are covered under the definition of right to life and liberty through progressive interpretation.
Large gap between these ideals and the reality often makes one to overlook the ameliorative crusade of these provisions for women. In addition to enforcement mechanism, prevalence of personal laws of different communities with inherent religiousity, which traditionally supported inferior status for women have always been the major hindrance in bridging this gap.
Personal laws being associated with matters which influence the women most are comprised of ample of provisions discriminating on the basis of sex. State has aided the perpetuation of these provisions overtly against the high ideals of the Constitution pursuing its policy of non interference in personal laws. Earlier in ten years' period immediately after the independence the apex court had also declared in some of the judgements that personal laws are beyond the purview of judicial review under Art.13 of the Constitution. Later in two consecutive judgements first in 1985 in Shah Bano v. Mohd. Ahmed Khan and after that in Sarla Mudgal v. Union of India, the Supreme Court has laid in clear terms that there is no relation between religion and law. Taking a cue from history it was recommended that even during colonial period legislation of 1781 was the basis of all religious personal laws. Thus there is no reason to keep them beyond state control now. Supreme Court also recommended for enactment of Uniform Civil Code as per Art. 44 of the Constitution with an aim to end discrimination against women.
Undoubtedly, prevalence of personal laws with deeply entrenched male bias is an almost unimpedible obstacle towards realizing in true sense the ideals of justice, equality and dignity for women. Nevertheless the contribution of a large section of judiciary is laudable for their ardent effort towards empowerment of women. Many provisions of personal laws have been challenged as discriminatory but on most of the occasions, judges have tried to interpret them favorably for women. It may be pointed out that at times, more than the text of a statute, it is the constructive interpretation of it that is crucial in transforming the desired objective behind the legislation in concrete reality. An evaluation of judiciary's performance in this regard can reveal that on many occasions enlightened judges have come forward to the rescue of women and for furthering the cause of equality and justice.
Declaring personal laws with in the purview of Constitution in accordance with previous two decisions recently, a provision of Hindu Minority and Guardianship Act 1956 was interpreted very broadly. In case of Geeta Hariharan v. Reserve Bank of India, Supreme Court interpreted section 6 of Hindu Minority and Guardianship Act 1956 and sec.19 Guardian and Wards Act 1890 to bring it in conformity with principles of equity. The provisions of these two acts which enjoin only father as the sole guardian of a minor child, were challenged by a mother as violative of Art.14 and 15. The bank authorities had refused to accept an application form signed by the mother on behalf of minor child on the plea that mother can not be a natural guardian during the life time of the father. In this case, though court did not strike down these provisions but following the principle of harmonious construction and with the aim of bringing statutes in conformity with changing conditions declared that mother can also be considered as natural guardian even when father is alive.
After the end of the nineteenth century the old concept of the 'Police State', wherein it was mainly concerned with maintenance of law and order and protection of life and property of its subjects has undergone a transformation. Presently in the era of 'Welfare State', where a State seeks to promote the socio-economic well being of the people the policy of the State aims at social good.
Pursuing this object, the Constitution of India provides the Directive Principles of State Policy in Part IV of the Constitution. These principles lay down certain economic and social goals to be achieved by the State Governments. These directives impose certain obligations on the State to take positive action in certain directions in order to promote the welfare of the people. Though these principles are 'non-justiciable', they are Constitutional directions which 'the State' is supposed to abide by. Mathew J. has aptly observed:
"The moral rights embodied in Part IV of the Constitution are equally an essential feature of it, the only difference being that the moral rights embodied in Part IV are not specially enforceable as against the State by citizen in an Court of Law in case State fails to implement its duty , nevertheless, they are fundamental in the governance of the country and all the organs of the State, including the judiciary, are bound to enforce those directives"
Therefore, the 'Directive principles' aim at securing social and economic freedom by appropriate action. Article 37 lays down that the Directive Principles are nevertheless fundamental in the governance of the country and it shall be duty of the State to apply these principles in making laws. Emphasizing it, the Supreme Court observed that "the command of the Constitution must ever be present in minds of the judges when interpreting statues which concern themselves directly or indirectly with matters set out in the Directive Principles".
Article 38(2) clearly provides that "the State shall....endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst groups of people residing in different areas or engaged in different vocations".
Another manifest declaration of the Constitution to achieve equality of status is directive under Article 39. It provides that the citizens, men and women, equally have right to an adequate means of livelihood. The State shall, in particular direct its policy towards securing that there is equal pay for equal work for both men and women, that the health and strength of workers, men and women....are not abused and that citizens are not forced by economic necessity to enter a vocation unsuited to their age and strength. The principle underlying this provision is "equal wages for equal work" irrespective of "sex".
In furtherance of these principles suitable provisions have been included in various labour laws passed from time to time e.g. the Equal Remuneration Act, 1976, the Bonded Labour System (Abolition) Act, 1976. the Factories Act, 1948, the Mines Act, 1952, the Workman's Compensation Act, 1923, the Plantation Labor (Amendment) Act, 1981 and several other statutes. In this regard, various International Labour Conventions and recommendations of the International Labour Organization have been kept in view. For example, the Equal Remuneration Convention 1951, which provided for equal remuneration for work of equal value regardless of 'sex' was ratified by India in the year 1958 and consequently the Equal Remuneration Act, was passed in 1976.
In Randhir Singh v.Union of India, applying this principle, the court explained that it is true that the principle of 'equal pay for equal work' is not expressly declared by our Constitution to be fundamental right. But it certainly is a constitutional goal. Article 39 (d) of the Constitution proclaims 'equal pay for equal work for both men and women' as Directive Principle of the State Policy.... means equal pay for equal work for every one and as between the sexes".The above principle of 'equal pay for equal work' has also been reiterated by the Supreme Court in Bhagwan Das v. State of Haryana and R.D.Gupta v. Lt. Governor, Delhi Administration. It has also been made clear by the Supreme Court that this principle has to be read in the light of Article 14 and Article 16 of the Constitution.
The Constitution provides some other principles of State Policy also to elevate the status and position of women, viz. "Art.42 provides that the State shall make provision for securing just and human conditions of work and maternity relief." Article 43: "The State shall endeavor to secure by suitable legislation, or economic organization or in any way, to all workers, agricultural industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life....".
The cumulative effect of these two Articles is that ' the State is under an obligation to provide by suitable legislation just and humane conditions in various industries and maternity benefits to women'. The Factories Act provides that the women are not required to work normally between 7 p.m. and 6.a.m. and not in any case between 10 p.m. and 5.a.m. Similar provisions also exist under the Mines Act, 1952 (Section 46 (3)) and the Plantation Act, 1950 (Section 25). Further, it has been provided that women labour would not be asked to perform any work of heavy load and to work in underground mines. This is an attempt to further ameliorate the conditions of women. In India, the Maternity Benefit Act, 1961 was passed which provides 12 weeks maternity leave with wages to women workers and other sundry benefits.
The existing labor laws are quite inadequate in giving the working women their due benefits. The saddest part is that the existing laws have not been implemented effectively and in their right spirit. It is necessary to provide proper safeguards for better working conditions. The report of the National Committee on 'Status of Women' (1974) has highlighted this aspect and suggested measures to improve upon the conditions of women. But no concrete steps have so far been taken by the government to remove the impediments in the employment of women. It is further suggested that the female workers in unorganized sectors especially in construction work and domestic employment etc. are harassed and exploited. Therefore, some legislative protection must be provided to the female workers in these sectors. It is further suggested that the piece-meal protection provided under different labour legislation has failed to fully protect the interest of female workers. Therefore, a comprehensive legislation is the crying need of the hour. Rather a comprehensive 'Protection to workers Code' would be the most welcome measure.
Another Directive Principle protecting the interest of women and which puts women at par with men is Article 44 which provides. "The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India." The Article envisages that in making laws uniformity must be adopted. The same law must be applicable to all and that all should be equal before the law.
The Constitution of India which came in force in 1950, has made detailed provisions for ensuring democratic functioning of the parliament and the State legislatures. However there were no provisions for democratic institutions at local level. The Directive Principles of the State Policy refer to village panchayats (rural local councils), but there was no specific reference to urban local self Governments.
The 73rd and the 74th Amendment Act of 1992, to the Indian Constitution represent the boldest initiative anywhere in the world for spreading local democracy both in rural and urban areas. These amendments ultimately gave a concrete shape to the Government of India's commitment to rest powers in the hands of the people. The most significance feature of these amendments was legislation for women and weaker sections to ensure adequate representation of all sections of the society.
The 73rd and 74th Constitutional Amendment Act of 1992, which will be legislated upon in all the states, incorporates salient provisions concerning political participation of women in local government:
These provisions have brought in qualitative change in the composition of local bodies and all women are encouraged to take part in nation's progress and development.
In the orthodox rural society, patriarchal and feudal forces, illiteracy resulting in lack of access to information and media, and poor exposure to outside world make rural women extremely weak and vulnerable as compared to the women in urban areas.
The Committee on Status of Women in India (1974) not only recommended representation of women in PRIs but also establishment of statutory women panchayats at village level as a transitional measure for managing programmes for women & children. This recommendation has never been adopted though such women panchayats have emerged in some states like Andhra Pradesh, Maharashtra and Karnataka.
Studies show that women elected to Panchayats are capable of acting both independently and with responsibility. A Government report says that Panchayat level reservations have "enabled backward castes, illiterates, landless, assetless and poor woman to participate and involve themselves in decentralized governance and development".
Women constitute about 50 percent of the population, their strength in Lok Sabha (The lower house of Indian Parliament) has been almost negligible right from 1952 when they numbered 14, to about 43 in the last Lok Sabha.
A International Labour Organisation study shows that "while women represent 50 per cent of the world adult population and a third of the official labour force, they perform nearly two thirds of all working hours, receive a tenth of world income and own less than one percent of world property". Therefore reservation for women is not a courtesy but only an honest recognition of their contribution to social development.
All political parties betrayed women as far as the women Reservation Bill is concerned. Women Reservation Bill was introduced in the Parliament by the United Front Government in September 1996. The bill floundered over a demand for quotas within the reservations for under privileged caste groups. Activists then staged sit in demonstration near Parliament at every session until the minority Government fell in December 1997.
There have been many arguments against the bill including suggestion that the Bill may be unconstitutional because it is discriminatory. Many jurists have argued that even an ordinary legislation for reservation of woman will be constitutionally permissible.
Article 15(1), which includes every kind of state action including political activity, forbids the state from discriminating on the ground of sex, but makes an exception by clause (3) to emphasize that it shall not prevent the state form making Special Provision for Women. This authorizes the state to act in a manner that brings about effective equality between men and women so as to improve the status of women. The Supreme Court of India has upheld as constitutional a government order reserving 30 per cent of jobs for women employees. It also supports reservation in nomination of women to Municipal Boards.
Many political parties are seeking sub quotas on grounds of religion or caste. Sub quota for Muslim women is being sought. Secularism is a basic feature of the Indian Constitution. It will also tantamount to discriminations because if a seat is reserved for a Muslim woman and even if they were to be elected by a common electoral roll it would be discriminatory and violate Article 15 (1) because it would deny a non Muslim Woman the right to contest that seat. This would amount to destroying one of the basic tenets of the Constitution as provided by Article 325.
Sub quotas are being asked for scheduled castes (SC) scheduled tribes (ST) and also other backward classes ( OBC). If this argument is accepted it would mean elimination of the identity of women as a group, reducing them to appendage of caste and religion.
The above description of salient features of the Constitution related to women , proves that the Government has left no stone unturned as far as extending equality in Constitutional terms is concerned. But it is rather unfortunate that large gap persists between these ideals and reality, mainly due to half hearted implementation of most of the provisions due to various political and religious constraints.
There are certain provisions common to all religions. These are related to the age of marriage, child marriages and dowry. Before discussing provisions as applicable to different religions these are discussed briefly.
Almost all systems of law have permitted marriages at an early age, the age of marriage and age of majority have been different. Usually attainment of puberty is considered the age when marriage is permissible but a child below the age of puberty was allowed to marry with the consent of guardian.
The disastrous effects of child marriages, e.g. young widowhood, maternal mortality, suicide, nutritional deficiency etc. persuaded social reformers to restrain them by legislation. In India with the Child Marriage Restraint Act 1929, (popularly known as Sharda Act) minimum age for marriage for males was fixed at 18 and for females at 14. Hindu Marriage Act, 1955 prescribed the same age for marriage and was raised to 18 for girls and 21 for boys as late as by the Amendment Act of 1978. The Marriage Laws (Amendment) Act, 1976 also introduced an option of puberty in Hindu Law on the lines of Muslim law wherein a girl married before 15 years of age was allowed to repudiate her marriage after she attains the age of 15 years and before 18 years of age.
Marriages in India, unlike west are "arranged" by the parents as a part of obligation to their children. Due to various social and economic compulsions all parents wish to be absolved of this obligation as soon as possible. This has resulted in the practice known as child marriage which continues in all pervasiveness in most of rural India more so in educationally backward States like Rajasthan. Undoubtedly young girls are worst effected due to this practice as it causes young motherhood leading to high rate of maternal and infant mortality. In any case it denies them many opportunities in terms of education and self sustaining means of livelihood.
The Child Marriage Restraint Act, 1929 made child marriage a penal offence for parents, or for those performing, conducting or directing it and for adult bridegroom, the validity of such marriage was left untouched. According to this act, while an adult male can be held guilty for marrying a minor girl, an adult female can not be held guilty. Further a female guardian can not be penalised as an abettor. This act has been most unsuccessful in its object of restraining child marriages, as proved by large scale violations in rural areas.
This is a clear example of schism between law and life where societal values fail to adapt themselves to legal norms. Though the practice of child marriage in rural areas has its roots in economic and social reasons, the deep-rooted religious beliefs associated with it makes the eradication difficult. Large-scale illiteracy worsens the situation.
This Act itself is reflective of situation that women have no say even in household matters concerning their children.
Dowry, an age-old tradition, cuts across all barriers of religion, caste, creed, social or economic status, in its all pervasiveness in India. According to Webster’s dictionary the word dowry means, " money, goods or estate that a woman brings to her husband at marriage". In actual practice, in India, dowry is name for a large purse which is extorted from the bride’s family by the groom or his family. It is indeed one of the most horrendous social evil, prevailing almost uniformly in a country as diverse and as vast as India. This traditional and now illegal social practice epitomizes the patriarchal and male dominant nature of Indian society.
Though the custom of offering presents by the bride’s parents to the groom and his family has always been part of ancient marriage rites but the viewpoints regarding the origin and form of this customary practice named dowry in earlier times differ. The common and most widely prevalent belief is that dowry was cash, ornaments or gifts endowed to the daughter at the time of her wedding by parents out of love in order to compensate her and also to ensure material security for her in future married life in absence of any legal claim on parental property according to old Hindu law.
Another belief propagates that the ancient marriage rites in the Vedic period were associated with ‘Kanyadan’ or the ceremony of giving away the bride. According to Hindu Shastras, the meritorious act of dan or ritual gift is incomplete till the receiver is given dakshina. Thus, the rite of giving over the bride to the bridegroom has to be accompanied with gifts in the form of cash or kind, which came to be known as dowry (named Vardakshina in Hindi). This money or property called ‘streedhan’, was considered as woman’s absolute property. But some of the contemporary authors have contended against this interpretation and justification of dowry and are of the view that dowry has always been conceptually and essentially that property which is ‘extorted’ from the father or guardian of bride by the bridge groom or his parents or other relations.
Whatever may be the justification and reasons for the prevalence of this practice which was claimed to be a noble and religious practice in its original form, according to the then prevailing social conditions, presently this custom presents the most serious threat for Indian girls and women. It forms the basis of perpetuation of many other injustices against women viz. female foeticide, girl infanticide, neglect of girl child in terms of providing food, medical care and education, malnutrition, high mortality rate amongst women. Girls in an average India family are considered as big liability for marrying them means a huge expenditure and strain on their families not only at the time of marriage but also when she bears the child and on many other religious festivals and occasions on a continuing basis.
Marriages now have reduced to big business in which groom’s side try to make as much money as possible. The rates of dowry vary from caste to caste and mostly depend upon groom’s accomplishments, family status and other attainments such as education, employment or prospects in acquisition of wealth irrespective of girls own credentials. The fervent hope of acquiring materialistic things is son’s marriage runs bleak when boy decides to marry out of his choice to a girl who can not bring a handsome dowry.
The social dimension of this custom lies embedded in essentialistic definitions of women, who are always "the other" and never "the subject"- a commodity sans humanity and an economic liability. With no worth of her, "her fate is bound up with that of perishable things, only a free subject asserting himself as above and beyond the duration of things can check all decay: this supreme recourse has been denied to women. With this being the case dowry adds all the meaning into a women’s life, devoid if she happens to be of this she is offered to flames.
Strong influence of religion in every aspect of life of an Indian has kept alive the belief that daughter’s marriage is the foremost spiritual and moral obligation of parents. Age-old belief of daughter’s marriage as a great legal and moral duty (dharma) of parents stands unshaken in changed social and economic situation. This provides the families "blessed" with a son an easy opportunity for extorting out all the materialistic things of the modern world, as a matter of right, from the family of bride, who is "cursed" with a female child. Inability of parents to meet the demands of groom and his family and there by ensuring a secured future for daughter after marriage has encouraged the practice of female foeticide and girl infanticide in some parts "out of love and strong concern" to save her from nightmarish future life.
Being aware of the strong religious roots and also perceiving the extent of distortion of this custom which is resulting in extreme forms of tortures to women, the strong need was felt to provide impetus for eradication of this social evil through legislative means. Dowry Prohibition Act, 1961 was enacted by government declaring giving and taking of dowry at the time of marriage as an offence. This act due to certain obvious shortcomings failed to contain the dowry related crimes. During 1970’s and 1980’s such crimes proportioned very high amongst the crimes related to women resulting in intensive and widespread agitation for required changes in law. Consequently, the Dowry prohibition Act 1961 was amended twice by amending act of 1984 and the act of 1986 giving effect to major recommendations of Joint Parliamentary Committee on Dowry Prohibition, which widened the definition of ‘dowry’ and made the provisions more stringent to curb this evil practice.
The Act defines dowry to include any property or valuable security given or agreed to be given either directly or indirectly –
This changed definition was aimed at widening the net with the inclusion of words "at or any time after the marriage" by including in the definition of dowry continuing demands made from the groom’s side after marriage as a cost for sustaining the marriage. It is important to note here that while giving away daughter in marriage is biggest obligation for parents, sustaining that marriage irrespective of any hardships, physical or mental is the greatest duty of every married woman in India. Normally, women fulfill this duty by resorting to suicide in absence of any alternative to unendurable torture and violence against her in marital home. Usually she is advised to bear with any kind of torture accepting that as her fate, for the sake of saving not only the sacramental tie till death but also the face of the family in the society.
The act has prohibited giving or taking away of dowry but has authorized the wedding presents of customary nature by parents, friends, relatives or acquaintances given at or about the time of marriage. The section further says that value of these gifts should not be excessive, having regard to the financial status of the person by whom or on whose behalf such presents are given. The offence of dowry was made cognizable and non-bailable with enhanced punishment not less than five years and fine not less than fifteen thousand rupees or amount of the value of dowry . The cognizance was allowed not only on the complaint of close relatives, welfare organisation or institutions were also authorised for the same. Because of this provision, now more cases of abuse are brought to light than in past. In many incidents, police or magistrate were forced to take cognizance under pressure of women’s organisations. The amendment act removed the limitation of one year for filing complaint. Under the amended act, there is no limitation period with in which a dowry complaint could be filed. Also, with a view to make the law more effective, burden of proof was reversed. Now the burden of proving that the offender did not commit the dowry offence is on the accused.
Besides these provisions the act declared that dowry is for the benefit of the wife or her heirs and makes it mandatory for any person who has received or who is in possession of the dowry, other than the woman in connection with whose marriage it was given, to deliver the same within three months of marriage or date of receipt as the case may be. The act clearly lays down that pending such transfer, the person holding the dowry holds it in trust for the benefit of the woman . Also, if the woman dies within seven years of marriage, father of bride is authorised to claim back the dowry. This provision is further substantiated with provisions in criminal laws, (discussed in detail in later chapter), wherein death of women within seven years of her marriage under suspicious circumstances is automatically construed as dowry death, making post–martem and police investigation mandatory.
Dowry Prohibition Act has certainly brought the evil in sharp focus and have made people more aware of the menace. But, admittedly the act has not been very successful in achieving this object for various legal as well as extra-legal reasons. In fact, the practice of giving dowry is so deeply entrenched and intricate with the marriage rites in India, that people find in impossible to perceive of a marriage minus dowry. Big dowry by affluent parents with out any compulsion but for the love and well being of their daughters generates an unhealthy competition in the minds of not so affluent parents, dowry being made symbolic of social as well as economic status in the society. Even in the Act, recognising the importance of presents from brides side in wedding, customary presents have been exempted from the definition of dowry subject to the restriction of maintaining a list of aforesaid presents. This particular provision, which was included with the intention of incorporating necessary flexibility in the act to avoid unnecessary hardships has been misused by the people in their interest of perpetuating this evil. Expensive gifts are extorted from the bride's parents in name of customary presents, who, often concerned about daughter's prosperity, for whom marriage can be the only career, do not even think of complaining.
Thus, the practice derogatory for women continues for the sake of women. It also nullifies the benevolent effect of multifarious efforts made for emancipation and empowerment of women in varied fields. This practice has precisely exemplifies the limitations of law in bringing about change in society.
(i) Divorce
Hindus, have perhaps from the very beginning of their civilisation, regarded marriage as a sacrament, as a tie which once tied can not be untied. The Hindu notion of a sacramental marriage differs from the Christian marriage in as much as the Hindus regard their marriage not merely sacrosanct and inviolable union, but also an eternal union – a union which subsists not merely during this life but for all lives to come. Derret puts it succinctly, "the intention of sacrament is to make the husband and wife one, physically and psychically, for secular and spiritual purposes for this life and for after lives.
In Dharamshastras, wife was accorded a high status , was considered half of her husband and a necessary companion to perform all religious rites. Thus, during smriti period wife and husband were allowed to give up each other only in very exceptional circumstances. However some customary nodes of divorce prevailed, and were allowed in lower castes.
In pre independence period, attempts to introduce divorce and other reforms in Hindu Law did not succeed. Hindu Law committee meant for reforming Hindu Law made first proposal in 1947 to introduce divorce in law. The committee evolved a uniform Hindu code applicable to all Hindus by blending the progressive elements of law of various schools of Hindu Law. It definitely raised tough opposition from orthodox section of Hindu opinion. Nevertheless, Hindu Marriage Act came in force in 1955 which converted Hindu marriage in to monogamous union and allowed dissolution of marriage. It contained adultery, desertion and cruelty as grounds only for judicial separation not divorce. The act was amended again in 1976 to make it more progressive and adultery, cruelty and desertion were made ground of judicial separation as well as divorce. Now, the Hindu Marriage Act, 1955 as amended by Marriage Laws (Amendment) Act 1976, lays down seven grounds, based on guilt theory of divorce:
In addition to this, wife has been provided with four additional grounds under which only wife can sue for divorce:
Hindu Marriage act, 1955 recognise divorce by mutual consent, after the Marriage Laws (Amendment) Act 1976. Under this act spouses desiring divorce by mutual consent have to present a joint petition. The requirements are:
When all three ingredients are established, divorce can not be refused.
The inclusion of mutual consent as a ground for divorce was in itself a progressive step keeping in view traditional Hindu practices. In this regard judges' role has also been praiseworthy as in most of the cases the decisions reflect understanding keeping pace with changing times. In case of Sureshta Devi v. Om Prakash the Supreme Court interpreted the expression 'living separately' to mean, "Not living like husband and wife. It has no reference to place of living. The parties may live under same roof under force of circumstances, and yet they may not be living like husband and wife. What seems necessary is that they are living with the mental attitude of not to perform any of the marital obligation".
The significant feature of Hindu Marriage Act, 1955 as amended by the Marriage Laws (Amendment) Act, 1976 is the inclusion of all three contemporary modes of divorce - fault grounds, mutual consent and irretrievable breakdown of marriage.
(i) Polygamy
The fundamental concept of individual liberty and responsibility, which is a cornerstone of Muslim Jurisprudence, is incorporated in the institution of marriage in Muslim Law. Thus, unlike Hindus and Christians where marriage is a sacrament and an indissoluble union, in Muslim Law, it is a contract. Thus, it is claimed that marriage as well as divorce is based on the free volition of partners like any other contract. It is the dominant position that Muslim jurisprudence confers upon husband that is responsible to certain extent for the existence of and recognition of institution of polygamy. Muslim societies throughout their history have been polygamous, as Quran is claimed to be permitting polygamy. Roots of this practice can be traced in the frequent wars in early periods of Islam, in different kingdoms. It was accepted as a practical strategy to fight a social problem of large number of widows and orphaned children due to frequent wars and consequent deaths of large member of men in early kingdoms of Islam. Thus according to historical account polygamy was only a temporary solution to the situation in a particular state of emergency.
The practice has been maintained, whether demand of the situation or not and it is said that in pre Islamic Arabia unlimited polygamy and brazen oppression of women prevailed to such an extent that the introduction of limited polygamy by Prophet was an achievement in itself.
Even in the present context, when all other religions enjoin monogamy, polygamy i.e. authority to marry up to four women is a privilege of Muslim men. Since it is one of the religious practices it is claimed to be immune from any legislative enactment.
Main argument put forward for protecting polygamy is derived from the contractual nature of Muslim marriage. It is contended that, "in Islam marriage being a contract, each party is free to accept or reject the matrimonial offer of the other. For a valid marriage in Islam it is absolutely necessary that woman must agree to marriage, and she can dictate the terms and conditions of marriage contract. Thus Quran has given a very special power to women in respect of choice of marriage".
The hypocrisy of the argument is self-evident considering the situation of women in India. Recognising the evils of the practice and hardships it causes for women, J. Krishna Iyer had recommended monogamy, deriving justification from Quran. He said, "Quran permits polygamy upto a limit of four provided they all could be treated with perfect equality in material things as well as in affection and immaterial things". He contended, "what is important in the Quranic verse is the interpretation of the phrase 'equal justice' as contemplated by the Quran. It is stipulated that a husband is bound to maintain his wife. This duty is absolute and without any reference to the financial condition of the husband or wife. If he has more than one wife he is bound to maintain them equitably. As this condition is most difficult to fulfill, in modern situation, the recommendation should be understood to be towards the practice of monogamy."
The practice is still perpetuated due to hypocritical argument of the government not to reform the religious laws unless demanded by the community itself though the judiciary has raised objection to the practice on number of occasions. Recently in case of Sarla Mudgal v. Union of India, the court recognised that the "practice of polygamy is injurious to public morals". Further, the judge contended, "the religious practices violative of human rights and dignity and sacredotal suffocation of essentially civil and material freedoms, are not autonomy but oppression".
It is strange that when Islamic Nations have abolished or strictly regulated polygamy it is still permitted in India.
(ii) Divorce
Wedded as it is to the notion of wife’s subordination to husband, Muslim jurisprudence confers on husband almost absolute powers of divorcing his wife, but denies like freedom to wife. Consequently wife can obtain divorce only when husband agrees to her proposal and she either foregoes her dower or gives him something in return to release her from the marital bond.
Marriage under muslim law based on the notions of contract was the only one in earlier times, which authorises not only divorce, but permits unilateral divorce. The absolute power of a muslim husband of divorcing his wife unilaterally, without any cause, without assigning any reason, literally at its whim even in a jest or in a state of intoxication and without recourse to court even in absence of wife is possible in India.
One of the most important argument for continuation of personal law of different communities in India is the divine origin of these laws. Authorities in muslim law too claim their laws, especially concerning marriage, divorce, succession etc. are impervious to any change whatsoever since they derive their validity from Quran. But on may occasions, it can be seen that the law as prevalent is not as what is preached by the Prophet Mohammed Sahib. In must be observed that prophet showed his dislike to divorce in no uncertain terms. He is reported to have said that with Allah, the most detestable of all things permitted is divorce.
Under Islamic law, divorce was regarded as most inhuman and is permitted only in most exceptional cases. As said by Prophet Mohammed that the lawful thing, which God hates most, is divorce. In a noted case, Monroe and Abdul Rahim J.J. have pointed out this fact in the following words:
"No doubt an arbitrary or unseasonable exercise of right to dissolve the marriage is strongly condemned in the Quoran and in the reputed sayings of the prophet (Hadith) and is treated as spiritual offence".
Sir justice V.R.K. Iyer in his celebrated judgement on muslim marriage and divorce law has held, "The view that muslim husbands enjoy an arbitrary unilateral power to inflict instant divorce does not accord with Islamic jurisprudence".
The law of divorce, has been so interpreted at least in Hanafi school that it has become a one-sided engine of oppression in the hands of husband. The contract of marriage under the Mohammedan law may be dissolved in any one of the following ways :
When divorce proceeds from the husband, it is called talak.
The wife can not divorce herself from her husband without his consent, except under a contract whether made before or after marriage, but she may in some cases, obtain a divorce by judicial decree.
Right Of Husband To Divorce
Any Mohammedan of sound mind, who has attained puberty, may divorce his wife whenever he desires without assigning any cause. No particular form of words is prescribed for effecting a Talak, it may be pronounced even in absence of wife.
There are various modes of talak prescribed under Mohammedan law, but the most common and prevalent mode of divorce in India is triple divorce (Talaq–ul biddat). This form of divorce is not recognised by Quran, thus though good in law, it is considered sinful and bad in theology. In this form, three pronouncements are made in single sentence. Another form of disapproved but prevalent divorce is single irrevocable pronouncement.
Such divorce being irrevocable remarriage or reconciliation is possible only if the following course is observed:
By a peculiar rule of Hanafi school, as distinguished from other schools, a divorce pronounced under compulsion or under the influence of intoxication or to satisfy his father or someone else is valid and effective .
Inspite of the fact that many muslim jurists are against these forms of divorce, these two are most commonly used modes. Surprisingly in spite of strong condmenation by various important jurists of these arbitrary practices, they are prevalent in present times in absence of any justification.
Right Of Wife To Divorce
In complete absence of any right with a muslim wife to dissolve her marriage, certain unwritten and traditional laws tried to ameliorate her position by permitting her, subject to certain conditions, to seek dissolution:
This form of divorce is perhaps the most potent weapon in the hands of a Muslim wife to obtain her freedom without intervention of any court .
It recognised the right of a wife to dissolve the marriage on following grounds:
Muslim women certainly have benefited from his act to some extent. Discussed here in detail are only two provisions that are resorted to most frequently, that is the option of puberty and failure to provide maintenance by the husband.
1. Right of wife to dissolve the marriage on ground of failure to maintain.
According to this section wife can seek dissolution of marriage if her husband fails to maintain her for two years. It has been held that even if failure to maintain is due to poverty, failing health, loss of work, imprisonment or to any other cause, the wife would be entitled to divorce. Mere inability of the husband to maintain his wife is no longer a ground for refusing divorces.
There is controversy regarding effect of conduct of wife for claiming maintenance and then divorce. One group of decisions basing itself on the traditional ‘fault theory’ has denied the right to a wife to divorce where her conduct was such as to absolve the husband from his duty to provide maintenance. The other group has tended to uphold the right irrespective of the wife’s conduct. Justice Krishna Iyer had held, "A muslim woman can sue for dissolution on the score that she has not as a fact been maintained, even if there is a cause for it, - the voice of the law, echoing public policy is often that of the realist, not of the moralist".
It has been contended by many that this view is not acceptable to most of the muslim theorists, who believe that if the wife fails to behave in accordance with the obligations imposed by Mohammedan law, there would be no duty on the part of husband to maintain, and in the absence of the same there can be no failure.
Justice Iyer supported the theory of dissolution when the marriage has broken irrespective of the relative fault of the parties. "There is no merit in preserving intact the tie of marriage when the parties are not able to and fail to live within the bonds of Allah, that is to fulfill their mutual marital obligations, and there is no desecration involved in dissolving a marriage which has failed. The entire emphasis is on making the marital union a reality and when this is not possible, the Quran enjoins a dissolution. This secular and pragmatic approach on Muslim law of divorce happily harmonises with contemporary concepts in advanced countries".
It can be contended that the above viewpoint is in conformity with changing times, especially if the determination of conduct of wife is to be strictly based on the stringent application of obligations imposed by Mohammaden law. It is important to note that according to muslim law, the marriage subjects the wife to husband’s power of restraining her movement, that is to say, the husband can prohibit her from going out and appearing in public. It also confers on the husband power of reasonable chastisement and correction when she is disobedient or rebellious.
The committee had also recommended that the right of the wife to dissolve, on the failure of husband to maintain her, irrespective of her conduct which may be main or contributory cause should be clearly spelt out.
2. Option of Puberty
The courts in India have interpreted this right very liberally, often involving the principle of equity and justice in favour of the girl. They have not rigidly applied the letter of law when this right could be exercised. It has been held that a minor wife did not lose her right to repudiate the marriage within a reasonable time after she came to know of her right and not necessarily when she attained puberty. In such cases they have even waived the condition of non-consummation when such consummation was by force or before she attained the age of fifteen.
The dissolution of Muslim Marriage Act has definitely brought in some relief for women from the oppressed bondage of a failed marriage. But the baneful effect of this act is nullified to a large extent with the continuation of unilateral powers of divorce with man. All the grounds of divorce in the case of woman are subject to proof and judicial scrutiny whereas a man need not assign any reason for divorcing his wife. This is certainly far from the requirements of equality of sexes. Given the socially and economically dependent status and the absolute and unlimited rights of divorce with men, women can not but be relegated to the position of extreme insecurity and inferiority.
(i) Divorce
In matters of marriage and divorce all Christians are governed by Indian Divorce Act 1869 and Indian Christian Marriage Act 1872. The Indian Divorce Act 1869 passed more than a century back is the oldest matrimonial law prevailing in India. While marriage law enacted rather recently such as Hindu Marriage Act 1955 has undergone changes innumerable times in order to make it up to date in keeping with changing social climate the Indian Divorce Act remains a virtual 'touch me not'. It is an anomaly that in an age when we are heading towards divorce on demand and on grounds of breakdown, the Indian Divorce Act still hangs to antiquities.
Under the sec 10 of the Act, both husband and wife can obtain divorce but there is a great difference between rights of husband and wife. The husband can obtain a divorce only if the wife has committed adultery. The wife can seek a divorce on following grounds:
Thus, the wife has to prove two offences by the husband before she can obtain a divorce, and more often than not "she succeeds only in one, thus she get only a judicial separation and not a divorce". There is no end to stalemate as decree of judicial separation can never ripen into a divorce. Thus parties continue to be judicially separated for decades without a divorce.
There is no provision for divorce by mutual consent. The law is so outdated and antiquated that it is crying hoarse for reform. In 1960 a draft bill was prepared on suggestions by Law Commission but apparently due to lack of political will the bill has not been passed till date.
The imminent necessity for changes in this anachronous law is felt time to time by courts. In R. Hemlate v. R. Satyanandam, while rejecting the divorce petition made on grounds of cruelty and desertion, these being grounds only for judicial separation not divorce the high court observed, "It is some what strange that in second half of 20th century a Christian wife is not in a position to get a decree for dissolution of marriage on the ground of cruelty only or adultery only. It is incongruous to allow discriminatory provision after coming in to force of the Indian Constitution guaranteeing equal protection of law and prohibiting discrimination."
While in the previous case decree for divorce was disallowed in a similar case, Elveena v. Gopal, a Christian wife obtained a decree on the ground of the husband’s adultery and cruelty. The full bench at the Chandigarh High Court simply confirmed the decree without making any discussion on the point contained in Sec 10 of the Indian Divorce Act. The adultery simpliciter by the husband would not entitle a wife to a dissolution of marriage, though adultery by wife is an important weapon in the hand of the husband to get the marriage dissolved .
The Calcutta High Court in a judgement observed, "we are inclined to think that our parliament or the State legislature should very seriously consider the question of introducing similar amendments in the Divorce Act of 1869, to bring it in harmonious conformity with other analogous enactment on the subject governing other communities of India."
In a recent case accepting the discriminatory nature of the section 10, the court exhorted the legislature and the government to make necessary amendments in the outdated laws. A commendable move, a much awaited response to the injustice perpetuated by the silence of the legislature in amending this act inspite of repeated exhortations by various high courts, was made by Kerala High Court in Mary Zechariah v. Union of India. In this case a petition for divorce was filed by a woman against her husband on the ground of desertion for more than two years. Constitutional validity of section 10 was also challenged. The Kerala High Court in an interim order had asked the government to take a decision on the recommendations of the law commission. Driven by the necessity of reforming these obsolete provisions, Kerala High Court in a refreshing turn around struck down the provisions of the Act.. While delivering the final judgement for the act, the full bench quashed the words, 'incestuous adultery', 'adultery coupled with cruelty' and 'adultery coupled with desertion' under the act, making it easier at least for the women of one state to seek divorce. This decision was again confirmed by special bench of Kerala High Court. Following the pattern of Kerala High Court, the court of another state has also held section 10 as violative of Art 14 and 15 of the Constitution. The situation however remains same for Christians of other states.
This Act is anachronous in many other aspects too. It is probably the only legislation where an aggrieved husband can claim damages from "adulterer". The court can also order the adulterer to pay the cost of litigation. When the court grants decree in favour of the husband on the ground of wife’s adultery, the court can even order settlement of any part of the woman’s property is favour of the husband and children. Anachronisms are there in the procedures too. Proceedings under the act can be initiated in a District Court or a High Court. But every decree of a District Court has to be confirmed by a full bench of the High Court. This peculiar procedure existed because the British wanted confirmation done by Christian judges. But it continues to remain in statute even today. This is so even when there is no appeal. A party has to wait for a very long time for confirmation in order that the judgement of the trial becomes complete and binding.
It is thus seen that the act as it stands today is extremely outdated and discriminatory. Lackadaisical attitude of the legislature towards the hardships created as result of such obsolete statutes is inexplicable even after repeated exhortations from various High Courts as well as Supreme Court. Notable feature of these cases was that many Church authorities and social organisations supported the case of the petitioner wife, clearly indicating the demand in the society for change.
Only hope and optimism can be expressed for other courts to take lead with inspiration from the move of Kerala High Court. But judicial activism has its limits. It is legislature, which has to come out of the slumber.
(i) Divorce
The Parsees are governed by the Parsee Marriage and Divorce Act, 1956 Both parties to marriage can initiate divorce proceeding on the following grounds:
In addition to these grounds wife can obtain divorce if she has been compelled by her husband to prostitution.
During the prevalence of typical, patriarchal Hindu joint family guardianship was not a problem of specific importance. With the society being patriarchal the fact of father as guardian for minor was too obvious to be discussed. Under Hindu Law, since Hindu joint family has been like a perpetual corporation, unique and so all prevading that it continued generation after generation, even after the death of the father, question of guardian was not important as head of the joint family (karta) was an automatic guardian.
Hindu Law of guardianship developed mainly in colonial rule under the influence of English law and later with the social change resulting in disruption of joint families. The pivotal position of father in joint family led to obvious acceptance of father as the natural guardian of his children and after the father, mother was assumed as natural guardian. No discussion seemed necessary in this regard and there was none.
The father was not merely the natural guardian of his minor children but his rights over his children were considered paramount. As late as 1954, the Madhya Pradesh High Court had said, "The father is the natural guardian of his minor son and he can not be deprived of the custody and possession of his minor children".
Guardian and Wards Act, 1890, had given statutory recognition to this right of father by laying down that a father could not be deprived of the guardianship of the person of the minor children so long as he was not unfit. It was held that even the loss of caste of father or his conversion to another religion or his remarriage or his leading an immoral life were not sufficient to deprive him of the guardianship of his minor children. His power of appointing guardian of his will was also recognised, and so much so that he could exclude the mother from the guardianship of his minor children.
Such were the notions in society that when Hindu Widow Remarriage Act 1856 was passed, it permitted widows to remarry, but it deprived them of the guardianship of their minor children from the deceased husband.
With the aim of improving the rights of women in area of guardianship, Hindu Minority and Guardianship Act 1956 was passed. The act improved the mother's position in the sense that after the death of father, the mother is undisputedly the natural guardian of her children, the father could not deprive her of it even by his will.
According to section 6 of the act mother can be natural guardian of her minor legitimate children:
Thus, as long as father is alive and able to perform his functions, he is the sole guardian and not the mother. Under this section mother is entitled to the custody of the child till he/she attains the age of five years but this provision is qualified by the word 'ordinarily'. Section 19 of Guardian and Wards Act, 1890 also lays down that only father can be the natural guardian.
It has been held that under the act welfare of child is of paramount importance thus the statutory limit of five years is not mandatory. Serving the cause of welfare of child, in large number of cases mother has been granted the custody of the child even after the age of five years.
Deviating from the strict application of section 6, in couple of trend-setting judgements, mother was considered natural guardian, in special circumstances during lifetime of father. Maintaining the trend of recognising mother as natural guardian is the recent judgement of Supreme Court in case of Gita Hariharan v. Reserve Bank of India. In this case Bank authorities had refused to entertain the application for a transaction by mother on behalf of her minor son, she was asked to produce the application form signed by father or a certificate of guardianship from a competent authority in favour of mother invoking section 6(a) of the Hindu Marriage and Guardianship Act. This section as well as section 19(b) were challenged as being discriminatory and violative of constitutional mandate of equality under Article 14 and Article 15.
Instead of striking down these sections as unconstitutional the court chose to construe them in a manner in which they would not offend the constitutional mandate of equality and non discrimination. It held that the word "after" need not necessarily mean "after the life time" but "in absence of". If the father is not in charge of actual affairs of the minor either because of his indifference or by virtue of mutual understanding between the parents or for some physical or mental incapacity or because he is staying away from the place where the mother and minor are living, then in all situations father can be considered as "absent" for the purposes of above mentioned statutes, and the mother can act validly on behalf of the minor as guardian.
Though this ruling will come to the rescue of many mothers who are practically in-charge of their children and who have to face harassment from various authorities insisting on father's signature, yet it once again brings home the fact that patriarchal norms are too deep-rooted in the society to be thrown away absolutely by enlightened judiciary even at the turn of twentieth century.
The mother can not be the guardian of her own child if father is not 'absent' in any of the above mentioned senses, that is if both the parents are living together, only father can be guardian. Reluctance of the court in imparting equality to both mother or father is not understandable, especially in contemporary situation where unlike earlier times, a large number of mothers are economically independent and can be as competent or even better guardians than fathers. True, equality is still a far cry.
Adoption is "the institutionalised practice through which an individual belonging by birth to one kinship group acquires new kinship ties that are socially defined as equivalent to the congenial ties. These new ties supersede the old ones either wholly or in part.".
Amongst Hindus, the origin of the custom of adoption is based on the great importance of son in Hindu Law, to have a son was one of the three debts that a Hindu was required to discharge in this world. Old Hindu Law allowed adoption of son in absence of a natural born son. The object of adoption was to ensure spiritual benefit by performing the last religious rites and also to continue the line. It was because of this approach to adoption that Hindu Law did not recognise the right to adopt girls as she could neither ensure spiritual benefit nor continue the line of her father.
With the passing of the Hindu Adoption and Maintenance Act, 1956, the whole basis of adoption has been changed. The Act makes three clear departures from the previous law of adoption:
The uncodified law did not recognise the right of a woman to adopt in her own right and even in the case of a widow, who adopted as agent of her deceased husband, the rules differed and some schools prohibited it all together. The fundamental departure that new act has made, is in recognising the right of a woman to adopt in her own right and no longer as agent of her husband. This position has been further enhanced by some favorable judicial decisions. It has been held that adoption by widow as a member of Hindu joint Family creates a new position in the family and such adopted son and mother will have right of partition in the family.
While dealing with question of allegedly bad motive of widow to disrupt the joint family, the Supreme Court had substantiated the right of widow to adopt in her own right. The court laid down that adoption of a widow could not be declared as invalid or void on the ground of her motive.
Certainly, status of women has been improved but like elsewhere, it has been with great caution of not imparting absolute equality in all matters.
Under Muslim law father's dominant position is recognised and his rights are very wide, but there is a distinction between guardianship and custody. The term guardianship is usually used with reference to property. This belongs preferentially to father, failing him, in order of priority, the following are entitled (i) father's executor (ii) father's father (iii) the paternal grandfather's executor. These are the legal guardians of the property of the minor. The substantive law of Islam does not recognise any other relative even mother, as legal guardian, even after the death of the father though she can be appointed as such under father's will.
Though mother can not be a natural guardian, but Muslim law recognises that she has the prime right to custody of minor children (Hizanat). The mother's right of custody or Hizanat appears to be an absolute right and even the father can not deprive the mother of this right. In case of male child she is entitled to the custody till the age of 7 years and for female child till puberty.
For Hindus and Muslims, the practice of guardianship has links to traditional practices, though in case of former it is governed by codified law and in case of latter by religious personal law. Rest of the communities are governed by Guardianship and Wards Act, 1890, wherein supremacy of paternal right is the key note. It clearly lays down that the father’s right is primary and no other person can be appointed unless the father is unfit.
Lately, as in Hindu Law, courts have decided that welfare of the child should be given more importance than the rights of parents.
The Government of India’s report on status of women, 1974 had advocated for the equal rights and duties of women in respect of guardianship, but since the act deals with the rights of minorities no change has been introduced as yet.
The institution of adoption, traditionally and legally recognised amongst Hindus, is not known in Christian law in India. If Christian parents have no issue and desire that some child takes that place, the only way open to them is to approach the court under the Guardianship and Wards Act and be appointed as a legal guardian.
For the Parsees also there is no law of adoption as such nor is adoption recognised by custom. However, Parsee woman can adopt a ‘son’ on fourth day of the husband’s death, for the adhoc purpose of performing certain religious rites for the deceased. This adoption is only for a limited purpose and does not confer any proprietary rights on the child adopted for limited purpose.
Due to this anomaly in laws relating to adoption in different religions the Adoption of Children Bill, 1972 was proposed in the Parliament, which lapsed, probably due to governments policy of non-interfering with the rights of minority groups in any way. In addition to an uniform adoption law for all communities, right of adoption equally to man and women was recommended. But such kind of law is yet to come through.
The dichotomous strand of thought in relation to women, where she is worshipped like a goddess but she herself is considered incompetent for performing any religious duties is discernible in almost every traditional practice in Hindu Law. Inheritance being one of the most important practices affecting both economic status and social status of women fosters this dual way of thinking for women. Hindu law which is acclaimed as one of the oldest institution in the world authorising separate and absolute property for women in the form of Streedhan (literally means wealth of women) has at the same time always deprived them from an equitable share in the parental property.
Several smriti writers had held a woman incapable to inherit because of her incompetence to perform religious rites on account of her impurity. It was argued that as riches were ordained for sacrifices , they should be allotted to persons who were concerned with religious duties and not be assigned to women, to fools and the people neglectful of holy obligations . Accordingly it was produced for the sake of solemn sacrifices, and they who are incompetent for the celebration of these rites can not participate in property but are entitled to food and raiment.
Thus, the Joint Hindu family, a salient feature of Hindu Law, which represents community of interest and united possession had deprived woman as an heir in the property. While there are two major systems prevailing in the country - Mitakshara (which prevails throughout India except Bengal) and Dayabhaga (prevalent in Bengal), the institution of joint family was common in most parts of India. Added to these two systems was the matrilocal system Marumakkattayan Law – which prevailed in some southern states.
Existence of coparcenary is a distinctive feature of Hindu joint family system. A woman can be a member of the joint family, but they are completely excluded from coparcenary, which is a narrower body of persons within a joint family consisting of father and his three male lineal descendants . Under Mitakshara school the law of succession is intimately connected with special incidence of Coparcenary property (ancestral property) in which, only coparceners i.e. only males acquire right by birth to the complete exclusion of females, who can not be coparceners.
Pre independent India, therefore, had a number of different systems of succession among Hindus and in most of them, position of woman was one of dependence with barely any proprietary rights. Even when they enjoyed rights they had only a limited ownershipor life interest and did not enjoy full ownership. Streedhan, which was considered as absolute property of a Hindu woman, was also subject to restrictions, as wealth earned by mechanical arts and gifts made by strangers did not form part of streedhan and she enjoyed no proprietary right over them.
Gradually, through liberal interpretations by various commentators and with the help of certain legislation, changes were introduced in the status of women in respect of proprietary rights. The Married Women's Property Act,1874, widened the scope of streedhan including in separate property (a) wages and earnings of married woman in any employment, occupation or trade carried on by law (b) money acquired through literary artistic and scientific skill (c) all savings from and investment of such wages and (d) a policy of insurance effected on her behalf. This extension of streedhan increased the right to own and acquire property and thereby provided an incentive to women for being engaged in remunerative work outside .
Subsequently, The Hindu Law of Inheritance Act, 1929 and The Hindu Women's Rights to Property Act, 1937 respectively recognised some females in heritable category and introduced changes of limited character to give relief to women of the family. The property inherited by these women was in nature of limited or restricted estate, known as women's estate, for at death it passed on to the next heir of the male from which she inherited.
Expedited by inconsistency, ambiguity and uncertainty due to prevalence of various systems, along with adaptive dynamism infused by preceding acts in law relating to succession, reforms were introduced and codification of entire Hindu Law on the recommendations of Rau Committee on Hindu Law Reforms in 1948 was completed . This resulted in passing of Hindu Succession Act 1956, which was made uniformly applicable to all Hindus, amidst strong objection of traditionalist.
This act overrode the customary mode of succession and made considerable changes in the old Hindu law, but the basic classification of two fold rules of succession, one relating to property of Hindu male and the other relating to the property of a Hindu female was retained. The Mitakshara dual mode of devolution was also recognised subject to certain modifications. Under this act, the Mitakshara joint family property still devolves by survivorship and the separate property devolves by succession. Thus, while the act perpetuated the inequality between male and female heirs by maintaining coparcenary system, its remarkable features however included the recognition of the right of women to inherit equally with men and the abolition of the life or limited estate of female heirs, thus enabling them to take property as absolute owners.
As discussed earlier in Hindu succession Act 1956 the dual mode of devolution of property under the Mitakshara school of Hindu law is maintained. According to traditional law, woman are completely excluded from the coparcentary property, but as a compromise to recommedations of Rau Committee to abolish coparcenary system for reforming Hindu Law, an arrangement was accepted in the form of section 6 of the act providing some rights for female heirs in coparcenary property.
The proviso to section 6 confers new rights upon the specified female heirs and the predeceased daughter's son of a deceased coparcenar and superimposes upon the integrated structure of the law related to Mitakashara Coparcenary, a rule intended to be remedial and beneficial. Thus in the matter conceived under the proviso, the interest of deceased coparcenar, if he died without making testamentary disposition, devolves by intestate succession upon the person who are among twelve preferential heirs. The female heirs who have been given place under class I heirs are:
All the heirs belonging to this class inherit simultaneously. This act thus apparently makes no discrimination between male and female heirs. Daughter has been mentioned as class I heir and thus she inherits with son and takes one share which is equal to that of son. The term daughter includes both married and unmarried daughter and natural born as well as adopted daughter.
Section 14 of the Act, which has the effect of converting a woman's limited estate into her absolute property, conferring absolute ownership rights over such property is most revolutionary in nature. Considering the position in old Hindu Law, the radical nature of this provision has attracted lot of litigation thereby providing the judiciary with ample opportunity to interpret it progressively. This section declares, "Any property possessed by a female Hindu, whether acquired before or after the commencement of this act, shall be held by her as a full owner thereof and not as a limited owner".
The explanation to the section says " property includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition or in lieu of maintenance or arrears of maintenance or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and, also any such property held by her as streedhan immediately before the commencement of this act".
Detailed discussion of this section is required for aptly analyzing the role of judiciary in achieving the object of this act, i.e. to remove all disability of a Hindu woman to acquire and deal with property and thereby ameliorate her situation.
To own any property as absolute owner under this section it is necessary that the woman should be in possession of the property in question. In a series of decisions beginning right after the commencement of the act it has been held that the word "possession" has to be used in widest connotation. The possession might be either actual or constructive or in any other form recognised by law. Later in Jagannathan v. Kunijithapadam it was made clear that the section demands possession 'in the eye of law', thus this section becomes applicable to any property which is owned by female even though she is not in actual, constructive or physical possession of the same. The apex court overruled some of the previous unfavorable decisions of lower courts and held categorically, "The legal effect of section 14(1) would be that after coming into operation of the Act there would be no property in respect of which it could be contended by anyone that a Hindu female is only a limited owner and not a full owner".
Amongst others, the provision concerning property acquired as or in lieu of maintenance has been of great importance. Under Shastric law a Hindu widow has a right to be maintained out of joint family property. Since this has been considered as an indefinite right, it was held that, if she has been put in possession of certain property in satisfaction of that right for her life, she is entitled to full ownership rights on that property. It has also been declared in many cases that property acquired by a widow for maintenance does not affect her right to claim share in the property as an heir. She is entitled to property in inheritance in addition to property obtained in maintenance.
The Court has also declared that any property purchased by a Hindu female out of her maintenance allowance is her absolute property, as also savings out of maintenance given to her and arrears of maintenance
Creation of rules regarding succession of the property of a Hindu female is essential corollary to section 14, which has bestowed absolute ownership on women. Section 15 and 16 of the act describe the method of devolution of property of a Hindu female. The categories of heirs of a Hindu female as prescribed under the section are:
1) sons and daughters (including the children of any pre-deceased son or daughter) and the husband,
2) heirs of the husband,
3) mother and father,
4) heirs of fathers,
5) heirs of mother.
The section says that if a Hindu female dies issueless, the property shall devolve upon the heirs on the basis of the source of that property and not to the husband. If the property was inherited by a Hindu female from her husband or father in law, as the case may be, the property shall devolve upon the heirs of her husband. If the property was inherited from her father or mother, the property will devolve upon the heirs of her father.
The act has introduced many other important changes deviating significantly from the traditional Hindu law practices. Contrary to pre act situation, conversion to another religion does not affect the right of a widow who has succeeded the property of her husband. One of the most important changes is concerning unchastity as a disqualification to inherit, covered by sec 28, which though not expressly provided in the section has been brought in its ambit through judicial decision, in conformity with remedial and beneficial nature of the act.
This sec says that, "no person shall be disqualified from succeeding to any property on the ground of any disease, defect or deformity or save as provided in this act on any other ground whatsoever"
Though there is some controversy on considering unchastity as disqualification for inheriting since pre-codified had prescribed so. It has been held by many courts that unchastity is no longer a disqualification of an heir covered under the expression " on any ground whatsoever". The judge observed, " the legislature has enacted this provision with the strong felt need to remove any adversability under which the Hindu women were reeling from matters of inheritance, succession rights etc. " Thus any disability not provided in the act should be construed under the provision to undo, what has been intended by the legislature.
These changes in law relating to succession may be called as of radical nature considering the traditional and pre codified Hindu Law. Inspite of many, long desired changes the enactment is still infected with various lacunas, discriminatory in nature, supporting the perpetuation of inequality on basis of sex, much against the mandate of constitution.
The one major factor which has contributed in continuing the inequality between sons and daughters is the retention of the Mitakshara coparcenary, an anachronism in present day. The act manifests a compromise, which definitely is an improvement, though insufficient, upon the past practices reached as a result of strong recommendation for abolition of coparcenary and counter representations against such a move. The compromise, which provided an inroad to female heirs for share in ancestral property, was that if a male member of a coparcenary dies then for the purpose of ensuing that his heirs get a share of the property, his share will be demarcated as if there had been a partition and his heirs called class I heirs, which include female members too will have the share divided amongst them simultaneously. It means that, if there is a coparcenary of father and two sons, the share a father would have got on partition would be one third. This will be divided among the class I heirs, where both son and daughter, if any will get an equal share. This puts sons in an advantageous position because as in above example, the two son in addition to their original interest as coparceners, will get equal share of father's property with the mother, grandmother, sister etc.
Thus, retention of Mitakshara coparcenary brings about inequality in the same class of heirs on the basis of sex. Besides, it has also meant continuation of two rights both of which affect the rights of female heirs detrimentally. The first is right of the coparcenar to renounce his right in coparcenary. The result of this is that on his death he will have no interest in the joint family which could be distributed among class I heirs. This deprives female heirs of any share, while son's share as coparcenar is ensured. The second of such characteristics is the right to convert self acquired property to coparcenary property. The effect of this is that the share of female heir is refused because in the self acquired property she would have had the right to inherit equally with the male members as class I heirs.
The fact that provision relating to exculding females from Coparcenary have become obsolete is evident from the legislative move of Governments of the three states- Andhra Pradesh, Tamil Nadu and Karnataka.( These ate states from South India). These states have passed amendment Acts, to amke a daughter who is unmarried before the commencement of the act as Coparcenar. The note worthy feature of tehse legislations is that teh preamble in their legislation on the topic declare in no uncertain terms that the exclusion of daughter from Mitakshara Coparcenary is unconstitutional and invalid.
Another provision of this act, which contributed both to the lack of uniformity as well as continuation of discriminatory treatment of female heirs is the provision excluding the devolution of tenancy rights under the legislation of the states, from the scope of the Act. Sec 4, chause (2) lays dow, " Nothing contained in this act law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for fixation of ceilings or for devolution of tenancy rights in respect of such holding.
This provision has led to elimination of beneficial effects of the act under the land legislation in many states. Therefore, in some states, dominant conservative groups have been successful in excluding widows and daughters.
Sec. 23 of the act relating to right of inheritance to a dwelling house is overtly discriminatory. It is provides that where a Hindu dies intestate and his property includes a dwelling house wholly occupied by the members of the family, then the female heirs are not untitled to claim partition of it unless the male members choose to divide their shares in dwelling house. Female heirs are entitled only to the right of residence. Even this right to residence is restricted to unmarried and widowed daughters or those deserted by or separated from their husbands. A married daughter enjoys no such right. Indeed this section was just keeping in view predominantly agricultural societies where fragmentation of land into small portions could have been detrimental for general well being.
Observing that nothing justifies the invidious distinction between married and other daughters, the committee on status of women in 1974 had recommended the removal of discrimination so that all daughters enjoy same rights. The female heirs right to partition exists though by virtue of sec 23, it is kept in abeyance if the male heirs do not choose to partition it. Also, for the application of this section it is necessary that heirs should include both males and females. It will not come in to operation if succeeding heirs are only females.
Though section has not been struck down but perceiving the apprehended injustice due to this provision which is justified on the basis of ancient Hindu doctrines and precepts, took an unexceptionable position that his bar to the claim of the daughter to demand a partition of dwelling house will only apply if the same is wholly occupied by the family members. The judge held "To put a fetter to the right of a female heir to claim partition under sec.23 the dwelling house must be entirely, completely, totally and fully occupied by the members of the family.
It has been held by various court decisions that this section will not apply
According to this section daughter has right to residence only if she is unmarried, or has been deserted by the husband, or separated from husband or has become widow. The daughter is treated as separated from her husband, only when her marriage has been dissolved or separation is under a decree or agreement. But this right is not available to a woman who is living separately from her husband without any legal or judicial or agreement. Besides, because of this provision, the daughter has no right to demand partition of dwelling house, even if that is the only property left by father. Secondly, if there is only one brother he can solely enjoy teh dwelling house , since daughter can not seek partition. In presence of this section the right to inheritance of a female heir is defeated as it is held in abeyance.
There is no limit, no restriction on the power of testation, which authorises father to deprive her daughter of her share by will, The committee on status of women had recommended imposition of limitation on the right of testation. The general and humane belief is that no father will deprive her daughter of her share without making adequate provision, but many surveys have shown that there are many women who are in miserable situation because they have been turned out of joint family, providing the point that there are many women who have reduced to destitution and beggary because their families deprived them of all support.
The changes made in Hindu Succession Act are surely commendable as compared to Succession rights of the women of other communities, But it is still not in conformity of the ideals of equality of the Constitution.
The M uslim law of inheritance is no less equitable. The Koran provides a set of heirs who take their specified shares and the remainder of property is distributed amongst pre Koranic heirs. Wives and daughters are koranic heirs. The Islamic rules of succession are relatively sophisticated but a general principle that discriminates against women is that of there are female and male heirs of the same degree i.e. daughter and son or brother and sister then the female heir takes half the share of male. So too a Hanafi widow takes one-eight or in certain circumstances a quarter of her husbands property and a shia widow takes one sixth or a quarter of her husbands property. A husband on his wifes death takes a quarter or half of his wifes property.
Besides, if a Muslim dies leaving a daughter as his only close relative she will not be allowed to take more than one half of its estate, the other half will go to some distant relative.
Unlike Hindu and Christian Law, Muslim law restricts a persons right of testation. A Muslim can bequeath only one third of his estate.
The Indian Succession Act 1925 governs Christians, Jews, Parsees and those married under Special Marriage Act, 1954, with regard to matters of intestate and testamentary succession.
The rules of Indian Succession Act generally recognise the equality of sexes and do not discriminate against women. This act does not discriminate between sons and daughters for a share in the property and widow is also entitled to one third share of husband’s property and one half share when there was no issue.
This Act indeed was a favourable change but for few provisions. It confers no restriction on the power of a person to will away his property and the protection enjoyed by a Muslim widow to a share of the estate and by a Hindu window for maintenance is denied to other widows under this law.
This act is not uniformly applicable to all the Indian Christians. Travancore Christian Succession Act and the Cochis Christian Succession Act, being law for the time being in force, in the respective localities are saved by Sec. 29 (2) of the Indian Succession. The Christians of Travancore and Cochin States are governed by their own succession laws.
A large section of Christians in Kerala are governed by the Travancore Christian Succession (TCS) Act, 1916 and Cochin Christian Succession (CCS) Act, 1921. The Travancore – Cochin High Court had held that Christians in these territories would be governed by their personal laws and not by Indian Succession Actby virtue of sec. 29 (2) of Indian Succession Act.
Above view since it caused hardships is disapproved by Supreme Court in Mary Roy v. State of Kerala . It held that succession to the Christian intestates would be governed by provisions in the Indian Succession Act. This judgement was made with retrospective effect that is invalidating the succession that took place between 1.4.1951 and the date if judgement in Mary Roy. Due ti its retrospective feature the judgement gave rise to furore of protests. Ultimately Kerala Government succumbed to the pressure of male recipients of inheritance. A bill titled Travancore and Cochin Succession ( Revival and Validation) Bill 1994 was introduced to nullify the effect of the judgement.
In all these personal laws' enactment the status of woman is inferior to that of men. Under Travancore Christan Succession (TCS) Act, a widow or mother was entitled to a life interest only and not an absolute interest, terminable on death or remarriage.
The most controversial features relates to the rights of a daughter to the property of her intestate parents. According to this act the sons and their lineal descendants shall be entitled to have the whole of the intestate's property subject to the claim of daughter for "Streedhanam" fixed at one-fourth of the value of share of a son of Rs. 5000/- which ever is less . Any streedhanam promised but not paid shall be charged upon the intestate property. The Cochin Act gives the daughter a share along with sons, subject to limitation that her share will be one third in value to that of a son.
In Goa, the widow is relegated to the fourth position and is entitled to only fruits and agricultural commodities. In Pondicherry, the laws relegate a woman to an inferior position and do not regard her as full owner even in few cases where she can inherit property. Some Christian women are still governed by the Hindu Customary Law of inheritance based on Manu, which no longer governs even Hindu Women. In one of the cases it was ruled by Madras High Court that under the customary law governing them a son excludes a daughter as an heir.
In all these acts there is evident and unjustifiable discrimination against women. Such features have degraded as most outdated pieces of legislation which needs thorough and drastic changes. Mere modification is not sufficient but a drastic change is called for.
For Indian succession Act, 1925, governs inheritance to property of the Parsis. For intestate succession among parsees, the rules of devolution of property of male and female intestates differ, resulting in discrimination against daughters and mothers. The son is entitled to an equal share in mothers property along with daughter but the daughter is not entitled to the same right to the father’s property. Under the Indian Succession (Amendment) Act, 1939 the son gets two, the widow gets two and the daughter one share. Another amendment to this act, Indian succession (Amendment) act 1992 is a welcome step as it effaces long standing discrimination against women under the Parsee law of intestacy. According to Sec 51 (a) of this act, now if Parsee dies leaving a widow or widower and children, the widow or widower and each child receive equal shares. Unfortunately parsee daughter is not provided protection against disinheritance.
Legislative indifference to discrimination against women in statutory law is so deep rooted that one feel thankful to small mercies
The old and traditional concept of joint family amongst Hindus, where well being of every member of family including illegitimate sons was a personal obligation, conferred the right to maintenance, legal or moral on family members. This right was of particular importance for women because of the economically dependent status of women arising from accepted distinction of assigned spheres for women and men.
Definition of maintenance, which originally included food, clothing, shelter as well as things necessary for the comfort and status in which person entitled to be maintained can be reasonably expected to live, was expanded later by Hindu Adoption and maintenance Act, 1956 to include education, medical attendance and in case of an unmarried daughter, the reasonable expenses of her marriage.
Maintenance of wife has been enjoined as a legal obligation, in continuation with the pre-codification old Hindu law tradition, the obligation attached to the fact of marriage. This obligation in Hindu law does not arise out of any contract, express or implied, but out of status of marriage, out of jural relationship of husband and wife created by the performance of marriage.
In ancient Hindu Law wife was not entitled to maintenance if she did not live with her husband, whatever may be the cause but gradually it became established and was given statutory recognition that a wife living separate from her husband for some justifiable cause can claim maintenance. Now, the wife’s right of maintenance arises in three situations:
Sec 18 (1) of the Hindu Adoption and Maintenance Act provides for the right to be maintained by her husband during her life time. Even an unchaste wife has been allowed this right if she continues to live with her husband. Under this act wife is entitled to maintenance subject to certain conditions if she lives away from her husband.
Sec 18 (2) says: A wife is entitled to live separately from her husband without forfeiting her claim of maintenance:
Desertion and cruelty being the grounds for dissolution of marriage too, have always invited different interpretation at various occasions. While treating desertion as a ground for granting maintenance, in many instances courts have considering the social context interpreted desertion under this act as not to mean desertion with animus. It has been held that desertion of wife though for small period without any intention of permanently abandoning her is a sufficient ground for maintenance. Similarly, though section demands cruelty as causing reasonable apprehension of harm or injury in living with husband, the word cruelty has been interpreted widely to include physical as well as mental cruelty. Accusations against wife of theft, unchastity barrenness, ill-treatment, explicit negligence are also considered as acts of cruelty authorising wife to claim maintenance
It has further been asserted by authorities in personal laws that wife will remain entitled to maintenance even if she resumes cohabitation with her husband, so long as the ground exists.
Besides wife, this act imposes an obligation for maintenance of unmarried daughters legitimate or illegitimate, widowed daughter, three widows – the widow of the deceased, widow of his or her predeceased son and widow of his or her predeceased son of a predeceased son, and daughter in law.
Under Sec 19 of the act daughter in law is entitled to get maintenance from father in law after death of husband but this obligation of the father in law is very limited one. He is obliged to maintain daughter in law only from "any coparcenary property in his possession out of which daughter in law has not obtained any share. The daughter in law forfeits her claim of maintenance when she remarries or if she ceases to be a Hindu by conversion to a non-Hindu religion, but surprisingly enough her unchastity not a disqualification
The various provisions relating to maintenance in this act and in other concerning acts too, conspicuously miss the provision regarding maintenance of wife if her husband fails to maintain her. In such cases she is not entitled to claim maintenance from father in law since husband is living and father is not enjoined to maintain a married daughter under the act.
Hindu Marriage Act under sec 24 authorises, both the parties to marriage i.e. husband or wife to claim in absence of any independent income, interim maintenance covering personal maintenance of the claimant and expenses of the proceedings, in a matrimonial cause.
Courts have exhibited liberal and socially sensitive view in interpreting this provision not imparting strict literal interpretation to words 'husband’ or ‘wife’ as conveying only legally married wife and husband. The expression ‘wife and husband’ in the context of the section and scheme of the act was interpreted as ‘a person claiming to be husband or wife’. It was held that till final disposal of suit a wife, even though she might be a wife of bigamous marriage will be entitled to interim maintenance.
Under this section court has discretion to fix the amount of maintenance. In absence of any fixed rule in this regard under the act courts normally take account of the following conditions:
In many cases judges have expressed the view that to fulfill the underlying aim of the act it is necessary to take in to consideration circumstances in each case before deciding upon the amount of maintenance.
Sec 25 of the Hindu Marriage Act contains the provision for permanent maintenance and alimony. According to this section court may order the respondent to pay to the applicant for his or her maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of applicant . In making such an order court may consider the income and property of the petitioner as well as respondent and also the conduct of the parties and other circumstances of the case. Any charge on immovable property of the respondent may also be created.
This section is frequently invoked along with the proceedings for dissolution of marriage. In a important decision court had held that while making an order for maintenance court will consider the fact of absence of sufficient means of maintenance. The fact that wife has potential to earn is immaterial . Courts have repeatedly stressed on considering only the independent income of wife irrespective of her father’s or any other family member’s ability to support her. While stressing upon the actual income of wife not the ability, contrarily court in one of the cases had ordered husband to pay maintenance even though he had no income at the time of order, on the basis of his being able bodied and capable of earning.
In addition to income, conduct of parties is also an important element invoked frequently by husband against the order of maintenance. Since the effect of this factor depends upon the discretion of the judges different High courts have expressed divergent views in this regard. Initially many judges had opined that if wife is responsible for break down of marriage, she should be granted either no maintenance or reduced maintenance. In case of breakdown of marriage on grounds of proved adultery on unchastity, a high court made an interesting observation: "The unchastity on the part of a woman is sin against the ethics of matrimonial morality in this country. A judge should, unless there be very special grounds, leave a wife, divorced on ground of proved unchastity or adultery, to the resources of her immorality and deny her the lawful means of support, by not passing a decree for maintenance in her favour".
Interestingly even in modern times, some of the judges adopt a rigid view and deny maintenance, while in earlier times Dharamshastras had entitled the wife guilty of adultery to at least starving maintenance.
Adopting much broader attitude later, the Indian courts have granted maintenance to wife even if she is considered guilty party for breakdown of marriage. It has been rightly asserted that unchastity should not be allowed to overshadow other factors underscoring imminent necessity of granting maintenance to avoid unnecessary hardships.
Recognising difficult social circumstances a judge ordered maintenance even though marriage was dissolved on ground of wife’s cruelty. He stated "in the net analysis divorced lady would be left alone, cursed by the society and a burden on herself both socially and economically. She may or may not have shelter to live in and bread to eat. The remarriage is very difficult, far fetched proposition in most of the communities amongst Hindus. In view of this, permanent alimony should be a substantial relief to her at least".
Clause (2) and (3) of Sec 25 authorize court to vary, modify or rescind the order if there is a change in circumstances of either party; if the applicant has remarried or if the applicant wife has not remained chaste and in the case of the applicant husband he has had sexual intercourse with any other woman after the decree.
Originally, under this provision court was obliged to rescind the maintenance order in the event of happening of any of the above mentioned events. This provision was modified through the amendment of 1976 in Hindu Marriage Act. The amended provision does not bind the court to rescind the order, it may merely modify or vary it. The right to maintenance which in many situation is the only relief for divorced or otherwise rejected woman has helped large number of women to fight against economic hardships. State had codified and to a large extent reformed this right as a part of its crusade to reform Hindu Law but the right certainly has been made more meaningful through enlightened judiciary.
Maintenance (nafaqa) of wife is a precept of Quran and the highest obligation of the husband. Maintenance includes food, clothing and lodging and is in no way dependent on the husband's means or on the wife's lack of possession of an independent income Muslim Marriage Dissolution Act 1939, provides failure of the husband to maintain his wife for two years as a ground for dissolution of marriage. The husband's duty to maintain commences when the wife attains puberty not before, provided that she is obedient and allows him free access at all lawful times . If wife deserts her husband she loses her right to maintenance. A muslim wife has a just ground for refusal to live with her husband and she can claim separate maintenance against him where he has taken a second wife or keeps a mistress. It has been held that this is an independent statutory right, under Criminal Procedure Code and is not affected by wife's personal law . Under personal law. the court while fixing the amount considers the rank and the circumstances of both the spouses.
Muslim law enjoins specifically for the maintenance of 'wife', thus the right to maintenance of a woman lasts as long as she remains a wife. After divorce she is entitled to claim maintenance only for three months after the divorce (period of iddat – seclusion) or to the period of pregnancy which ever is longer. A muslim wife is not entitled to maintenance during the period of iddat after the death of her husband.
Many provision of muslim law ordain and support the subordinate status of woman, especially of wife to that of husband. Prevalence of practice of polygamy, unilateral right of divorce for husband and no right of maintenance for a divorced wife after period of 'iddat' perpetuate the discrimination of a Muslim women not only with men but also with other Indian women. Continuance of these practices ensure women's socially and economically dependent status.
The muslim woman's, especially divorced wife's right to maintenance received major focus because of great controversy in wake of a Supreme Court judgement in 1985. This judgement in Shahbano V. Mohd. Ahmed Khan, was a noble attempt by the judiciary in absence of any legislative move to ameliorate the position of hapless and indigent women suffering from some of the excessively oppressive provisions of Muslim Law. In this land mark judgement, it was ruled that an indigent muslim woman is entitled to maintenance from her husband, even after, divorce under Sec. 125 of the Criminal Procedure Code (Cr. P.C.) – the measure which was introduced as a solace to a Muslim wife who might have fallen prey to arbitrary male hegemonism. This significant judgement had started considerable debate among the muslim community .
In fact this decision was culmination of a series of judgements regarding maintenance where judges attempted interpreting section 125 in various way to mitigate the harsh effect of maintenance provisions for muslim wife under personal law. In Bai Tahira v. Ali Hussain and later in fuzulunbi v. K.Khader Vali , the legality of maintenance for divorced muslim wife was upheld. The verdict held that maintenance provision under Cr.P.C. is not dependent on the religion of either spouse. Since the provision is part of the criminal law, which is applicable to all persons, and not civil law which varies according to the religion of the citizen, the Muslim husband is liable pay maintenance to his indigent wife.
The decisions were pronounced regarding the maintenance of divorced muslim woman in many others cases but Shahbano's case attracted much furore, because in this case it was categorically stated that "in Sec 125 Cr.P.C 'wife' includes also a divorced muslim woman so long as she is not remarried and that section overrides the personal law, if there is any conflict between two".
In this case husband had contended that firstly, the word wife under Sec 125 Cr.P.C. does not include divorced wife secondly under section 127 (3) Cr.P.C. he was exempted from paying maintenance as he had paid to her "the whole sum which, under the personal law was applicable to the parties, was payable on such divorce". This was referred to Mahr, an amount which the wife, is entitled to receive from the husband in consideration of marriage in muslim law. The husband claimed that he had returned this amount to her and therefore she was not entitled to maintenance after that but the Supreme Court opined that, "Mahr is an integral part of marriage. It is either a seem of money or some property to which wife becomes entitled by marriage. It is not a consideration proceeding from the husband for the contract of marriage but it is an obligation imposed on husband by law as a mark of respect for the wife. It can not be an amount in consideration of divorce since he does not divorce her as a mark of respect". The judgement aimed at containing the negative effect due to section 127 and divorce method by which husband could divorce his wife extra judicially and deprive her from maintenance.
This judgement despite being welcomed by many Muslim leaders and women's groups was vehemently criticised by orthodox Muslims. They called it as "a grave interference with the Muslim personal law" and claimed that supreme court can not be a better interpreter of the Quran than the entire body of Muslim jurists and interpreters down the ages . It was further argued that "the Shariat was immutable and valid for all times and all societies and no human authority can touch it .
An acrimonious debate followed the Supreme Court judgement both outside and inside the parliament. Finally, under the rising pressure of traditionalists and obviously to placate the fundamentalist and obscurantist challenge the Muslim Women's protection of Right on Divorce Act, 1986 was passed.
In its statement of objects and Reasons the bill laid that "the decision in Mohd. Ahmed khan v. Shah Bano led to some controversy as to obligation of Muslim husband to pay maintenance to the divorced wives that therefore an opportunity has been taken to specify the rights which Muslim woman is entitled to at the time of divorce and to protect her interests".
But in reality, it was meant to render infructuous the decision, which might have been a beginning by the progressively thinking forces to challenge male hegemony of orthodox fundamentalist. The bill while dealing with mahr introduced no new right for the women. Instead of conforming to the constitution ideals of equality of sexes and dignity for women, bill was rather demeaning as it imparted a colour of charity to the right of woman for maintenance. It talks of payment of by the relatives or by the wakf board. It does not confer any substantive relief not even a token relief.
Provisions of the bill reveal that they are absolute mockery of law and justice. A divorced woman, who is not remarried and is unable to maintain herself after the iddat period is tossed from one relative to another until she reaches the doors of charity under the wakf Act. 1954 .
This bill was enacted despite the fact that a group of divorcees met the Prime Minister one of them being, Madina Mulla. "Twenty four year old Madina Mulla had been married and divorced three times in the past four years, finally to be left with burden of two children. None of the divorced husbands paid her maintenance and she was fighting for her bare survival, having sent her children to orphanage".
The Act fails to come to rescue of millions of Muslim Women. The most horrifying fact was that government being very well aware of such plight of a large number women could be inhumane enough to undo a noble step already taken in this direction. It was a wonderful example to prove the detrimental effects of mixing religion with politics. However this phenomenon is not new in India and women have always been victims of such hypocrisy.
In a tussle between progressive and retrogressive, fundamentalist and reactionary elements are able to hold sway and keep denying a group, constituting a part of this humanity a right of surviving as human
The Indian Divorce Act provides that a wife can ask for maintenance in certain circumstances. The provisions for Maintenance are similar to that of the Parsee Marriage and Divorce Act. The court can not 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 husband , to be paid by the adulterer of the wife, the court has the discretion to settle the money for the benefit of children or for maintenance of the wife.
The Parsee Marriage and Divorce Act, 1936, being a pre independence legislation recognises only the right of the wife to maintenance – both alimony pendent lite as well as permanent alimony. In fixing the quantum as permanent maintenance, the court will determine what is just bearing in mind the ability of the husband, to pay, the wife's own assets and the conduct of the parties but the amount can not exceed one fifth of the husbands income. The order will remain in force as long as the wife remain chaste and unmarried.
The right of wife to be maintained by husband has been regarded as on inherent right. Therefore, any contract by her giving up future rights of alimony has been regarded as contrary to public policy.
Previous chapters present an account of the legal status of belonging to majority community – Hindus as well as of all the major religious minority communities – Muslim, Christians, and Parsees . Without attempting to evaluate the actual enforcement part, claimed to be dependent on societal norms, values , ethics and attitude, a very cursory and superficial analysis of bare laws reveals the inferior status of women as compared to men. These laws nurture gross inequality not only between men and women but also between women and women. More so, because in case of Hindu Personal Law intervention of state has resulted in Hindu women gaining increasing legal rights, although they too have not gained complete legal equality. Policy of non interference in conformity with the constitutional principle of freedom of religion to every citizen, lack of initiative from the minority community itself for reforms, inevitability of the principle of tolerance for fostering solidarity and national integrity are the main justifying arguments with the state to perpetuate gross inequality amongst its citizens. Interestingly, fundamental right of religious freedom is upheld on the sacrificial pyre of all other high spoken and much acclaimed ideals of the constitution viz. "Equality, Justice and Fraternity ensuring dignity of the individual."
Uniform Civil Code (UCC hereafter) as recommended by constitution under Art.44 is contended as the best alternative for all the communities, to realize laudable constitutional ideals. Article 44 of the constitution under Directive Principles provides that "The State shall endeavor to secure for the citizens a Uniform Civil Code through out the territories of India". Pressure groups apparently backed by religious fundamentalist forces tend to come in the way of UCC. Doubts have also been expressed about to feasibility and also necessity.
Origin of UCC in India can be traced in the long history of invasion by foreign rulers of different origins , a long rule by Mugals, followed by colonial rule by Britishers which had added to the diversity of this vast country. Homogenous society of ancient times predominantly inhabited by people of Hindu religion was at its heterogeneous high when it received Britishers as new administrators of the country. Administrating civil matters of such diversified population governed by age old customs and traditions with religion forming part of every integral aspect of their life was not only uninteresting but also was a Herculean task for Britishers. Necessitated by political and administrative expediency colonial rulers adopted the policy of the non-interference in the personal (civil) matters of the population allowing them to be regulated by their respective religious laws or customs. Later realising the importance of religion for the population comprising mainly of Hindus and Muslims, the same was used as a main tool by the colonial Government to sustain their rule by adopting the policy of "divide and rule" and encouraging communalism .
Religion which has always been misinterpreted in the patriarchal societies to perpetuate male hegemony, gradually became too sensitive and emotive issue to be reformed or amended without consensus of the fundamentalist majority in each religious group. In later stages with the fervor of independence movement issues relating to women's miserable situation under various religious laws assumed importance in the communities divided along the lines of religion, caste, class, race. Considering diversified religious practices mainly responsible for subordinated and oppressed status of women the idea of a UCC was introduced in to the National Political Debate in 1940. UCC was envisaged as an optional code to begin with, which could gradually replace the different personal laws followed by religious communities. Proposal of UCC was challenged by many including some of the Muslims.
Since extreme communalism with the whole population divided in to small factions pitted against each other had been the main hindrance on the path of achieving freedom from colonial rule, unity, solidarity, and national integrity were the prime considerations for national leaders. UCC was advocated not only for ameliorating women but also and later more importantly as a device leading towards national integrity and solidarity. Concern for national unity and imminent necessity for removing the factors hindering national consolidation eclipsed the issue of enacting UCC for better rights of women. Surprisingly even the members of women's conference who had proposed UCC in 1940 during Constituent Assembly debate for inclusion of UCC as a constitutional directive did not even mention the social reform aspect of a potential UCC. It was only the unifying aspect of a nation as a whole which was emphasized marginalising the issue of rights of women.
The proceedings of Constituent Assembly show a marked absence of discussion about the significance of a UCC for women. Although most of the supporters of UCC conceded that personal laws did not fall outside the competence of state they nevertheless stopped short of making this clause as a fundament right. It is plausible that markers of the Constitution were aware of the fact that although a justifiable UCC would have been consistent with the adoption of articles on equality in the constitution, it might also have alienated the minorities, mainly the Muslims. It was claimed by one of the Muslim members of the Constituent Assembly that no other purpose will be served by enforcing uniformity through UCC except to murder the conscience of people and make them feel that they are being trampled upon as regards their religious rights. The final shape taken by article on a UCC indicates the greater importance attached by the Constitution makers to achieving national unity than to ensuring legal equality for women.
Demands for a UCC were intensified immediately after the independence. Those were the formative years for an independent nation with its leaders involved in issues much more important and urgent than bringing equal rights for a class, named women forming half of its population. Rights of minority groups, or for that matter wishes of orthodox fundamentalist were accorded supremacy to the rights of women.
Due to deteriorating situation of women the demand for UCC gained ground once again in 1985 with revolutionary judgement of Supreme Court in Shah Bano case relating to maintenance rights of Muslim wives.
This effort of Supreme Court to remove anachronism in the Muslim law and in the direction of imparting social justice for destitute women resulted in large scale protests by the Muslim fundamentalist leaders with the plea of immutability and sacrosanct nature of Islamic Law. The then government succumbed to the pressure and once again on the specious argument of maintaining national integrity voices of women were curbed with a Muslim Women (protection or Divorce) Rights 1986, undoing the bold step of the Supreme Court.
After a lapse of ten years Supreme Court again taking lead while deciding a case on Bigamy enjoined the Government to take the steps in the direction of enacting UCC. This case recalled the hardships women in India are subjected to and how the so called sacrosanct provisions of religious laws are misused in absence of uniformity.
Even the after the directive of Supreme Court to the government first in 1985 and again a decade later in 1995 not much activity has taken place on the part of Government to initiate the process of legislation in thsi direction. After this judgement having wide implications hope can be expressed that even in absence of Government's action judiciary at least will maintain the spirit of social justice for women.
The central problem in enacting a UCC concerns the relationship between the Constitution and various religious personal laws. Resolution of the conflict between the capacity of the state to enact a UCC or even enact reforms and the Fundamental Rights of the people to exercise their right to freedom of conscience including the right to be governed by their religious personal laws, precedes the discussions over proposed format for such UCC. Interestingly the arguments both for and against UCC are based on the Constitution.
The majority Hindu Community had experienced many reforms in personal laws as early as 1956. This could be made possible largely due to a pro-reform attitude of peer group and widespread demand for rights of Hindu women specially widows' remarriage since pre independence era. On the contrary every occasion of intensified demand for reform or changes in the personal laws of minorities by state intervention initiates debate whether personal laws being religious laws are beyond the constitutional purview in spite of violating norms of equality and justice.
This controversy has arisen partly from the fact that no article of the Constitution mentions the laws to include 'religious personal laws' directly. The only judicial pronouncement so far dealing with the question directly and explicitly was made in 1952 in the case of State of Bombay v. Narasu Appa Mali, where in the court had ruled that personal laws are not governed by part III of the constitution.
The court had to determine whether the personal laws of Hindus and Muslims were 'laws in force' within the meaning of Articles 13(1) and 372(1) of the Constitution, because if they are covered under 'laws in force', they must conform to the provisions of the Constitution. Interpreting the expression laws in force and with aid of Art.44 recommending enactment of UCC and Entry 5, list III, the court concluded that the personal laws do not form a part of the 'laws in force' and thereby do not become void at the commencement of the Constitution even if they conflict with Part III enumerating otherwise inviolable Fundamental Rights.
Though no court after that has given a reasoned explanation for saving personal laws from the constitutional limitations but in many cases High Courts and Supreme Court had decided to that effect, while evading a direct and clear pronouncement on the issue.
Contrary to this opinion of some high courts ,many legal works believe that the phrase 'laws in force' can not be interpreted narrowly. The view is that as Hindu Law has continued in force, the president does have the power to modify its provisions by adaptation order to make them conform to the Constitution. If applicable to Hindu a personal law, this is equally applicable to all personal laws.
Fortunately after so many years Supreme Court in a case in 1995 laid in clear terms that " there is no relation between religion and personal laws in a civilized society. Article 25 guarantees Religious Freedom , while Art 44 seeks to divest religion from social relations and personal law. Marriage succession and like matters of a secular character can not be brought with in the guarantee enshrined under Article 25, 26 and 27".
Further, the learned judge added in clear terms " The legislation not religion being the authority under which personal laws was permitted to operate, the same can be superceded/ supplemented by introducing a UCC." This judgement should have wide implications as it appears to be in conformity with the Constitution.
Earlier the interpretation provided by Bombay High Court in Nasaru Mali's case was also contrary to the approach of Parliament while reforming and codifying Hindu Personal law. The overriding clause in each Hindu law Act provides that all facts, rules or interpretations of Hindu Law and all customs and usage forming part of that law shall cease to have effect with respect to matters dealt with by the Act. In each reform enactment the government justified the changes on the ground that after the commencement of the Constitution women could no longer be subjected to unequal personal laws.
The constituent Assembly debates and the conspicuous silence of the constitution regarding state's capacity to reform various religious personal laws in order to make them conform to the constitution reveals the governments intention to effect a silent compromise to the demands of Muslim community for explicit declaration of complete exemption from governmental interference in Muslim personal law.
In Nasaru Mali such stand of the courts in the immediately following teh commencement of the Constitution is to a certain extent justified. Having acceded to the demands of minorities especially muslims for respecting their respective religions and also by ensuring Religious Freedom as Fundamental Right it would have been absolutely untenable to declare all the personal laws ipso facto after the commencement of Constitution. Obviously, then courts were unwilling to create a situation where the existing personal laws were made invalid but no alternative system of rules was available to govern personal relations. But now after more than five decades of the commencement of the constitution in independent india, the issue is how long it is justified to allow the continued existence of personal laws indefinitely without conforming to the constitution.
Most significant part of these ambivalent decisions of courts in most cases beginning from 'Narasu Mali' is the intense drive towards social reform and abolition of anachronistic practices. Most of the acts which were upheld by the courts had the purpose of social reform, which the judges did not want to whittle down for the political inability of the government to introduce similar reforms in laws of other communities. Probably the demand of the situation immediately after the commencement of the constitution was not the 'all or nothing' type of package deal. The approach was to achieve equality even if not complete equality.
Part III of the constitution provides the Fundamental Right to Freedom of Religion. Art.25, which is directed to individual says : (1) subject o public order, morality and health and to other provisions of this part, all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion. (2) Nothing in this article shall effect the operation of any existing law or prevent the state from making any law- (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
In addition to this individual right, Art.26 ensures certain rights to religious denominations. It provides: subject to public order, morality and health every religious denomination or any section thereof shall have the right (a) to establish and maintain institutions for religious and charitable purposes (b) to manage its own affairs in matters of religion (c) to own and acquire movable and immovable property and (d) to administer such property in accordance with law.
These articles make it clear that the right to religious freedom is not an absolute right. Given the fact of importance of religion in the lives of people of India, scope of this freedom has always been a contentious issue. However, courts have adopted the technique of dividing religious practices into essential and non essential, and have declared that protection against state intervention is available only for the essential practices of religion. Since the Constitution does not define religion, the Supreme Court further decided that what constitutes religion has to be ascertained primarily with reference to the doctrines of the religion itself. Over the time it has been accepted that neither the individual nor the religious denominations could be given absolute right to decide what formed an essential or integral part of the religion.
Although the Supreme Court has expressly stated the principles regarding the scope of article guaranteeing Freedom of Religion, the issue if the religious personal laws form an essential part of the religion that can not be legitimately interfered by the state is not settled. The constitutional controversy centers on the relationship between Articles 25(2) (b) and 26 (b). In other words, if it be accepted that a practice forms an essential part of the religion and is protected by Article 26(b), does Art.25(2) (b) still give the state a right to alter it for the purposes of social reform ? Or is the right to make social reform legislation restricted only to non-essential aspects of religion?
Initially the High Courts were of the opinion that social reform measures under Art.25(2) (b) can be undertaken even with regard to what are claimed to be essentials of a religion. Subsequently with a shift in this stand supreme court rules that practice declared to be essential are beyond the state intervention. The Supreme court held that "Art.25(2) (b) was not meant to cover the essentials of a religion and a law intended for social welfare or reform would not be permitted to reform a religion out of existence. In absence of an accepted method of determining what constitutes an essential practice this decision implied that state has no authority to reform religious personal laws.
After a long gap and probably due to legislature's silence in this regard, Supreme Court in 'Sarla Mudgal' clearly laid that the Freedom of Religion does not prohibit the state in any way from reforming personal laws of the minorities.
Although there is no explicit indication in this respect but a review of Constituent Assembly debates during formative stages of Constitution reveals the concern of some of the members especially women members about the apprehended misuse of the Freedom of Religion by fundamentalist against the crusade of social reform by the state. Keeping this in mind clause 2(b) was added to Art.25 as a restriction on the freedom of religion, without any discussion on the capacity of the state interfere to with religious personal laws. Surely, this omission as well as absence of any criteria to distinguish between religious and secular activities can be interpreted as implicit assumption by state of absolute powers in matters concerning social welfare and reform.
The above account also makes it clear that the constitution makers had realized the possibility of conflict between the Fundamental Right to freedom of conscience and efforts to improve the position of disadvantaged groups, such as women and untouchables. Nonetheless this conflict was not adequately resolved, and the exact power of the state to reform religious personal laws was left undefined in order to avoid making minorities especially the Muslims feel apprehensive. A direct consequence of not defining the powers of state very clearly was that it left scope for the state to assume wider powers with regard to religion if it wished. Something which Sarla Mudgal's decision now clearly implies.
Although initiative of Government on UCC is lacking, the debates on the issue are ongoing process. But these debates have not been particularly useful for many reasons. Firstly, these debates are usually confined to discussion about the nature of some religious personal laws i.e. whether a particular religious personal law can or can not be reformed and made part of UCC, secondly most authors emphasize the unifying potential of a UCC without making much effort to recommend it as a means of ensuring legal equality of women. Unfortunately even after more than five decades later nature of debate has not changed much. Misplacement of issues remain the main draw back of most of these debates.
Such debates though usually commence with a high note for the cause of women but they confine them to discussions about the nature of religious personal laws i.e. whether a particular religious law can or can not be reformed. Instead of covering all the religious minorities and highlighting the fact that even the modified Hindu law is suffering from lapses against women, and needs change, discussions take a turn towards personal conflict between Hindu majority and Muslim minority. Thus, with narrowed parameters, the whole debate is turned into a sensitive issue, with each group typing to prove superiority of his or her religion instead of focussing on attainment of constitutional principles supposed to be applicable to every individual irrespective of religion and sex. It obscures the fact that all religious laws, including Hindu laws, discriminate against women and therefore need to be changed.
Furthermore, like the Constituent Assembly debates UCC is projected as a device to foster unity of the nation and combat communalism in India. Such arguments with preference for homogenous society initiates, though erroneously, the expression of fear by minority against tyranny of majority, which is again imparted the color of Muslims against Hindus.
The Supreme Court also recognised the fact of misleading discussions on UCC. In Sarla Mudgal, it was observed, "The pattern of debate even today is the same as was voiced forcefully by the members of minority community in the Constituent Assembly. If non-implementation of the provisions contained in Article 44 amounts to grave failure of Indian democracy represent one side of the picture then the other side claims that logical probability appears to be that the code could cause dissatisfaction and disintegration than serve as a common umbrella to promote homogeneity and national solidarity".
While large member of nationalist groups emphasize more on the unifying potential of the code most of women groups and organization activate for the UCC anticipating clarity, certainty and predictability in laws dealing with matters having greatest impact on the lives of the women. They are fighting against the injustice and inequality suffered by women, resulting from the confusion and cacophony of present jargon of different laws for different communities. Surely, the thing which matters most to the women in present situation is the achievement of equality and justice.
Sarla Mudgal's case well exemplifies the gross misuse of religion in their own interest to perpetuate injustice. The case involved the validity of second marriage of a Hindu husband after conversion to Islam, without having his first marriage dissolved. Needless to say that after monogamy was made a rule for Hindus many Hindu men adopted the practice of converting to Islam and marrying again without dissolving the previous marriage since Muslim Law permits polygamy.
The Supreme Court having recognised its role of reformer in absence of any action from other organs of the government declared second marriage as invalid. It was held that the marriage will be void and the apostate husband would be guilty of the offense under section 494 of Indian Penal Code which permits bigamy. This judgement was particularly encouraging in the grim scenario for women marred by misery and helplessness due to misinterpretation and misuse of religion. In Sarala's case Supreme court declared in explicit terms that article 44 of the constitution clearly excludes any relation between religion and law. With the aim of advancing the interest of justice in was recognised "it is necessary that there should be harmony between the two systems of law just as their should be harmony between two communities". The court recommended UCC as the best alternative to achieve this harmony.
In addition to conventional objections against codification , there are more specific objections to codification in the area of personal law in India , which can be enumerated as under:
Admittedly some of the objections noted out against UCC are not baseless since UCC will definitely replace religious personal laws with teh uniform law and would curtail the authority of religious leaders.It will certainly increase the control of the state. But the strong and compelling need for reforms outweigh these objections.
Inspite of proven and accepted superiority of reforming individual laws probably that is not the best option for India. This long period after independence has proved the point that the expectation for a demand to be raised by the community itself for initiating changes by state is absolutely futile. Since, the persons who are capable of making their voice heard are strong supporters of status quo because that alone can sustain their hegemony. A large section of people , especially women who desparately and truly need change will probably not be also to do so in near future due to their social and economic constraints. It is certainly not an exaggeration to say that large numbers living in clutches of illiteracy are not even aware of any such possibility of change. UCC is supposed to replace the personal laws of different religious communities and provide a single code uniformly applicable to all the communities, covering all the matters which have till now been considered untouchable by state.
Contention of the critics of UCC that it will hamper progressive development of religious law is ill founded. All the religious personal laws reveal that there has been no development of religious laws so far. Except Hindu laws, which had undergone reform in 1956 all the other personal laws have not changed even slightly from their original position and have become absolutely anachronistic. The leaders of the community, who claim to be possessed of the authority for adapting the laws to changing times have failed in their task. In fact, no code or legislation can be more intransigent than the present personal laws.
Another argument countered against UCC is that it will be a step towards eroding the distinct culture of communities. True, preserving the culture and the cultural heritage is very essential and every nation state must accept prime responsibility in this regard. The post modernist concept of multiculturalism is certainly something to be strongly supported and promoted. But actually what constitutes culture? Culture truly speaking is a way of life of people. It is composed inter alia of conventional patterns of thought and behavior which include values, beliefs, economic activity, institutions, technologies and many other features.
The Culture of any community can not be so superficial to become obsolete with modification in any one element. Culture is there to provide its members with "meaningful ways of life" across full range of human activities, including social, educational, religious, recreational and economic life, encompassing both public and private sphere . Much against this definition of culture, the culture, which the religious protagonist claim to protect does not provide but obstruct the meaningful ways of life for women, who incidentally are also the part of same culture. Evidently, they want culture to use as a tool to serve their vested interest at the cost of large section of the cultural group. However, culture can never be static nor can it be imposed. Had it been so, the cultural heritages would have vanished with the changing time, since nothing which can stand the test of time can survive for a long time.
Thus, change is one of the fundamental properties of any culture. Certainly externally imposed changes are not the best way to maintain dynamism of any culture but becomes the inevitable option if the saviors themselves become threat to the very existence of the culture. This is certainly what is happening in case of minorities' religious cultures in India. In this case, culture is what a hand full of politically and economically powerful orthodox fundamentalist want it to be. Besides, the concern for the preservation of culture and allied activities has to be balanced against the changed aspects of society and the imperative of keeping pace with the changed requirements of social relations.
Since the culture encompasses the human life, concerning almost every aspect of the life, the traditional value system needs to be adoptive with if the activities concerning some aspects of life are undergoing substantial change under impact of modernization and industrialization. When part of the legal system is working on equality, personal law practices perpetuating discrimination can ultimately result in dysfunctioning of the whole system.
Admittedly, in a heterogeneous society minorities run the risk of losing their culture and of being assimilated by the more powerful majority community. Thus they are surely entitled to a special status and it is reasonable to expect that the minorities would be allowed to retain control over matters that are inextricably linked to their sense of identity. Having this accepted, the minorities claim for the right to make decisions in religious personal matters is justified since the inviolability of religious personal law constitutes an important symbol of group identity and solidarity for minorities. Keeping this in mind state are normally hesitant to intervene and modify them. This hesitation is acceptable to a certain extent but should a state allow rules to operate that are drastically different from or are in conflict with the generally accepted notion of justice or morality or values incorporated in the constitution.
Minority groups being distinct groups definitely deserve their own group differentiated rights with a right of non interference from the state but nobody would agree to that if the group identity instead of thinking of the welfare of its people is used as a cloak to perpetuate oppression and tyranny against weaker sections in the group. And, this is exactly what is the case for women. Besides, past experience proves that some of the traditional practices which right have been most justified and wanted according to then prevailing social conditions, become obsolete with the changed circumstances and modernization. Their deeply entrenched roots in the society along with their connection with religion, which nobody wants to be held responsible to flout, make eradication of such practices almost impossible. That is where the welfare state steps in, and is most essential for example amongst Hindus practices like Sati, Child Marriage, Dowry, Girl Infanticide could never have been checked, though in limited extent, with out state intervention. The fact of religious sanction make people overlook even the evil effects arising from the same.
The debate about demand of right of self determination and the authority of secular state with regard to religion has been neglecting even the overt double disadvantage women are made to suffer. The community leaders' claim regarding right of minorities and religious personal laws are based on the constitutional guarantees of Fundamental Rights. Yet if women of minority community demand legal equality in personal matters, also because of constitutional guarantees, the minority leaders as well as state remain unreceptive to this claim. Thus, it is not wrong to assert that when minority groups demand special rights by virtue of their minority status, they claim that the claim of men are the interests of the entire group, effectively silencing and marginalising women. A state that has assumed responsibility for welfare of minorities must not overlook that these minorities are composed of women too. Therefore, it is imperative that the right of self determination ensured to minorities must be construed in such a manner that the state is not produced from ensuring legal equality for women in personal matters.
In heterogeneous societies, a combination of minimal state intervention and maximum autonomy to groups can be the idealist option, but probably not in societies marred by extreme disparities - social as well as economic. The welfare state is the undesirable reality of nation composed of such groups and it would be unrealistic to assume that only the area of personal laws can be left outside its regulation. When the state is expected to provide resources or impetus for development, watertight distinction between public and private to be governed by state and personal laws respectively is not feasible. It can only cause disruption of the whole system. The pursuance by the State of economic and national development goals is bound to change the lives of people and thus the needs of people, but if regulation of personal matter does not keep in step with contemporary needs then change in other dimension of lives will be unlikely to proceed in a straightforward fashion.
Even if the argument that personal matters covering human relations do not demand State intervention is accepted considering the importance of minority group rights, the ultimate sufferers will be women. Even if its assumed that communities can be allowed to function as it did in pre colonial period, the implications, for women are that they will be expected to abide by decisions taken by male leaders of the community whether they be religious or traditional leaders. Even if these leaders will not always subordinate the interests of women, as long as structural changes in contemporary society are not brought about women cannot hope to share power and leadership roles which are at present predominantly held by men. In view of the fact that it is only where the State has reformed religious personal laws that women have gained certain rights, although not complete legal equality, the regulation of personal matters can not be entrusted only performing some functions, the State has to step in even though this is a problematic solution.
In the struggle of minority groups with state for more autonomy the minority leaders must not be allowed to use women of their communities as hostages. The strategy used to keep state out of community affairs need not be to keep women subjugated. Therefore, a state which ensures self determination to the minorities must simultaneously ensure that women within the minority groups have right to determine what constitutes legal equality for them.
The above discussion apparently advocating for the enactment of UCC is not intended to propose UCC as the only alternate ever, but in present times keeping in view the past record of traditional religious leaders that seems to be best option. Although due to perpetuation of gross injustices, demand of UCC is still in vogue but under the influence of post modernism of west focus is shifting from strong nationalist sentiments to the importance of pluralism, multiculturalism and minority rights, while under nationalist upsurge, individual rights had prime importance, in post modern era concept of individual liberty is somewhat misplaced. Undeniably promotion of pluralism, or importance of minority rights can not be more important else where then is India, but the experience of last five decades has proved that religious freedom to encourage pluralism and to ensure religious and cultural protection to minorities is used only to exercise tyranny and oppression on women. On the pyres of women's rights and their dignity are surviving various patriarchal power structures. Since in India women are supposed to carry and bear the responsibility of protecting and preserving 'culture', a slight deviation in behavior prescribed by men results in a great hue and cry about the erosion of culture and cultural values, again causing the evasion of the real issue of ameliorating the condition of women..
UCC is advocated as an ultimate remedy to this centuries long misery of women. It is supposed to replace the personal laws of the communities with a single code uniformly applicable to all, covering all the matters which are till now considered untouchable by the government. The superiority of the idea of reforming individual r6eligious personal laws instead of replacing them with UCC is undisputed. This surely would make the acceptance of laws better if the demand generates from the community itself, as also the unique cultural heritage of different communities as embodies in personal laws will not be obliterated. Further the members of community wold not feel imposed upon or oppressed by tyranny of majority. This could be tremendous advantage in generating within the minority communities a feeling of belonging and of being part of the nation which in turn would help consolidate the nation building efforts of the state.
Although the source of the principle of gender equality is the constitution and that principle should be the guiding factor while undertaking reforms in individual religious personal laws, but now it is imperative to conceptualize a device, which can interpret the abstract constitutional principle of equality in a manner which is pro women and feminist. The Government of India's report on status of women had also supported the idea of enacting UCC as the ultimate goal to be achieved through amendments to existing laws.
It is very important to note that if the Government has to work on seeking amendments in the existing laws and ultimately work towards enacting UCC, firstly, it will have to abandon efforts to simultaneously uphold the sanctity of various religious personal law, secondly modernist have to shy away from the habits of advancing theological justification for their reforms, which make them justly open to attack on the ground that modernist are usurping the functions which do not belong to them. Another problem with such a way of justifying reforms in traditional laws is that authors inadvertently or even intentionally hold fewer right for women as it is opposed by some sections of the society
It is also necessary to realise that all those rights that women are entitled to in contemporary societies may not be derivable from within traditional laws. For instance, it is a common practice to argue that monogamy can be read into Islamic Law on the strength of Koranic verses themselves. However, this result is attained by an unconvincing use of canons of Islamic jurisprudence, which will be unacceptable to the orthodox sections of that community. The realistic option thus is to admit that Islam allows controlled polygamy but since monogamy is the accepted more in contemporary times, the Islamic rule will have to be succeeded.
Certainly, a compulsory UCC based on the principles of true legal equality composed of rules from various religious personal law system, and from the laws of other countries and from international agreements and convention seem to be the best option in presently in Indian context. But before this the government has to take steps to clearly define the relationship between the constitution and religious law. Fortunately, after so many years Supreme Court has stopped mincing words to evade the issue and stated in clear terms the relationship between religion and law and had exhorted the government to take steps towards forming public opinion for enacting UCC.
The Government has not taken any steps in this direction so far as in democracy governments are bound to be susceptible to group pressure and is reluctant to make unpopular decisions concerning reforms in the laws concerning religion. In the present day Indian political scenario of unstable governments, the task appears to be more difficult since the minority leaders hold substantial vote bank to influence the government. The attitude of the leaders and government has not changed much after five decades and the same plea of "not hurting minority sentiments" is used to side track women's most legitimate demands. Thus it is important once again that the question of reforming personal laws for granting legal equality to women should not be allowed to be drowned in the hypocritical controversy about relationship between constitution and religion, a controversy where women's rights take backseat. The legislature in India is essentially a political body, thus it is very difficult for it to enact any measure overriding resistance from even a small section of the society. Considering the factional parliament of the present day in India, no government wants to take any risk to alienate any group and it is likely that once again the same plea of national integrity and solidarity can be used to silence the women's demand.
But, now with gradually changing circumstances, hope can be expressed that the women of the whole nation will be able to unite crossing all barriers of religion ethnicity, class, caste and race to start a new revolution to force the government to concede to their valid demands. The move has to be for reforming the discriminatory religious personal laws with UCC or without UCC. Certainly, the task is very difficult and there is a little hope for the government or legislature to take any initiative and this challenging task has to be undertaken by the united force of women in India, and fortunately a large section of society appears to be in their favor.
Dowry is indeed a problem specific to India but domestic violence and battering of wives is a universal phenomenon. Domestic hooliganism and violence against married women, what has come to be known as "wife battering" occurs all over the world on a significant and disturbing scale . In India the wife who has always been presented by the scriptures as the equal half of the husband, the equal participator with him in all religious and spiritual rites and ceremonies, is the worst target of social and personal aggression. The menace of domestic violence against married women in India is closely associated with the evil of dowry. Insufficient dowry or insatiable desire of the groom or his family for more and more money leads to ill treatment, bride burning or unendurable acts of cruelty leading women to commit suicide. The rising graph of domestic violence cases or dowry related crimes against women had instigated the demand for changes in criminal justice system too along with amendments in Dowry prohibition Act. Thus through criminal Amendment Bill 1983 changes were introduced in Indian Penal code, code of criminal procedure and Indian Evidence Act to provide protection to women against what may be called "crimes against her personality.
A new chapter XX-A was added in Indian Penal code (IPC) to deal with this problem. This chapter comprising of single section 498-A was grafted on the IPC specially to deal firmly and effectively with all cases of cruelty and harassment to women . This section made cruelty to married women punishable with imprisonment for a term, which may extend to three years and with fine. As per this section cruelty to a married woman includes:
1. Willful conduct of such a nature by the husband or any relative of the husband as it likely to:
2. Harassment of a woman
Through his amendment Act of 1983, Sec 174 of criminal procedure code was amended empowering magistrate to hold an inquiry and making the post- mortem essential when a woman dies in suspicious circumstances within seven years of her marriage. A new section 113-A was inserted in Indian Evidence Act reversing the presumption of innocence against the accused in case of suicide by a married woman. To raise presumption under Sec. 113 A following two conditions should be satisfied:
Two new sections 304-B in I.P.C. and 113-B in Indian Evidence Act were added by the Dowry Prohibition (Amendment) Act 1986. Sec. 304 – B in I.P.C. created a new offence of ‘dowry death’, which is defined as:
"Where death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death."
Punishment for a person guilty of dowry death has to be for a term of imprisonment which shall not be less than seven years but which may extend to imprisonment for life .
Sec 113 B of Evidence Act provides for the presumption of dowry death. According to this sec:
"When the question is whether a person has committed the dowry death of a woman and it is shown that soon before the death such woman has been subjected by such person to cruelty, or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death."
All this legislative activity resulting in the mush sought for changes in laws with an aim to fight this social evil was indeed a welcome step, all the lacunas at various places in new as well as amended sections notwithstanding. But this euphoria of being equipped with seemingly effective and stringent legal tools is soon eclipsed with the harsh reality of the rising inverse relation of the incidents of bride burning, dowry deaths and suicides to convictions. The cliched suggestion of concentrating more on preventive mechanism rather than expending on curative methods is futile in these cases, because dowry harassment cases are brought to light only in the extreme situation of death or bride burning. Given societal and moral pressure on a woman to keep marriage – a sacred union of two persons thriving, even single handedly, most of the women prefer to bear silently every kind of torture by husband, who is superior by virtue of his sex and by husband’s family too, who assume a superior position by virtue of possessing blood relation with the groom. The preference for suffering silently is also based on the lack of faith on legal system for relief and on the apprehended nightmarish experiences for deciding to take refuge of law. Given the fact of large scale poverty and illiteracy especially amongst women in India, cumbersome procedures, corruption in police and courts, the huge expenses of courts especially High Court and Supreme Court and the inadequate legal aid programmes, all have made justice system inaccessible to most of the women. Though, Indian legal system boasts of thriving on the strong foundation of Rule of Law, purported justice varies with the economic and the social status of the parties concerned. Initial difficulties in getting the case registered immediately or even after several petitions, to have body subjected to post mortern to find the real cause of death, to arrange for proper inquest, are simply a prologue to the forthcoming obstacles during the whole trial
The above discussion is not intended to prove the absolute futility of the legal system, but to demonstrate the gap between legislative ideals and operative reality. Reality, with large number of demoralizing decisions and discouraging trends is no doubt studded with progressive attitudes and encouraging pronouncements, too. There are many cases resulting in unprecedented conviction in cases of dowry death under Sec 304 – B, with pronouncements of seven years’ rigorous imprisonment,- the minimum prescribed punishment under the section and even life imprisonment . There are decisions reflecting sensitivity and awareness of prevailing social reality amongst judges, exhibiting their determination to work towards the cause of eradicating this evil but at the same time many decisions fuel the perpetuation of status quo.
In many cases, courts have done away with the need of strict application of letter of law, to avoid hardships. Many of the technical procedures are interpreted broadly to impart justice. The requirement of corroboration of evidence of witnesses is often, ignored in spite of defense contention of ignoring most of the witnesses as interested witnesses being closely related to deceased, for holding the accused guilty. It has been held that evidence of relatives of deceased without being corroborated from outside are admissible and this does not come in way of conviction. . In another case court observed, "One can not expect that a newly wedded bride should go on complaining about her ill treatment by her husband or in laws to any outside person".
In case of "Balaji V. State, involving allegations of cruelty on husband it was observed, "It is not necessary that proof should arise from independent quarters. Solitary testimony of witness may be found sufficient. The event of harassment and cruel treatment to wife can occur only with in precincts of the matrimonial abode, thus the plausibility or possibility of such as occurrence being known to others is bleak if not impossible".
These observations are significant considering the aim of section 113-A and 113-B, by which the burden of proof has been reversed. According to these sections for shifting the burden of proof on the accused, it is essential for the prosecution to prove cruelty by husband and his family. Given the bride and her family’s tendency to maintain secrecy in such cases, considering these incidents as domestic issues the proof of cruelty is a difficult task for prosecution in absence of independent witnesses. There have been cases which resulted is acquittal of accused even after admittance of dowry demands due to failure of prosecution to prove cruelty and harassment beyond reasonable doubt .
Some of the sympathetic and socially sensitive judges have attempted their best for furthering the cause of social justice, by reversing the judgements of lower courts , which had resulted in either complete acquittal of accused or minimal sentences due to large section of judiciary manned by judges brought up is traditional norms of our society respecting patriarchal values .
Acquittal or reduced punishment in most of the cases is grounded on failure of the prosecution to prove the case beyond reasonable doubt , on unreliability of dying declaration or some other technical and procedural grounds even in cases where constant dowry demands are proved. Some of the disturbing judgements were where judges instead of condemning this evil practice have implicitly approved or rather encouraged perpetuation of this menace. There are instances where suicide of bride, even in presence of proved dowry demands, is explained as an act due to brides own sensitiveness or sentimentality and her low tolerance power . In this reference the case of Arjun Dhondiba Kamble V. State of Maharashtra needs to be mentioned here specially. In this case, court legitimized the demand of valuables by groom’s family as reasonable expectation in marriage of their son. The learned judge held that "presents expected are customary in nature, they are like post marriage expectation, thus will not constitute dowry". Surprisingly , even in presence of clear proofs about cruelty and harassment accused could not be held responsible for death of the bride; since according to Judges things demanded could not be named dowry.
Delay of 24 hours to three days has also formed the reason for complaint being quashed in many instances. Such judgements no doubt act as disincentive to parents and family members who have already suffered the loss of a loved one to seek redress. But more unfortunate is the fact that these act as incentives to husbands and in laws to get rid of one daughter in law and look for another who will bring more to fill their coffers . It has been rightly pointed out that it is cheaper for an Indian man to kill his spouse and obtain a new one with another dowry than to divorce his wife and pay her maintenance .
Fortunately, whole of the judiciary is not oblivious to these lapses and resulting injustices. Supreme Court has taken took notice of lapses in investigation system in Sri Bhagwat Singh V. Commissioner of Police, Delhi . It was asserted: " It is evident that legislative measures have not met with success. Where death in such cases is due to a crime, the perpetrators of crime not infrequently escape from the nemesis of law because of inadequate police investigation. It would be of considerable assistance if an appropriately high priority was given to the expeditious investigation is such cases, if a special magistrate machinery was created for the purpose of prompt investigation of such incidents and efficient investigative techniques and procedures were adopted".
More than a decade long working of provisions related to dowry in various acts has brought home the fact that the combat for eradicating this evil is much more difficult than expected. It demands a comprehensive approach towards many problems concerning women and girls. The vicious circle comprising -birth as a girl child, illiteracy, economic dependability, marriage and dowry death - can not be penetrated without a complete overhauling of the system – legal, political as well as social.
The menace of sexual harassment for women cuts across all barriers of nations, level of advancement and industrialisation, religion, castes, status, age, personal characteristics and types of employment. All over the world women have been subjected to various kinds of sexual exploitation, harassment and torture in varying degrees. The menace increased manifold with increased participation of women in public life exposing them to varied forms of sexual assaults ranging from aggressive type to protracted subtle kind from their employees, supervisors and co-workers. This till now invisible problem has always been a major impediment for women towards effective contribution and uninhibited participation at work place.
Increased entry of women into labour force and other employment not only amplified the problem but also necessitated the eradication of the same. In countries like India where public sphere is to a large extent still a male bastion women have been silent sufferers till very recently but even at universal level problem of sexual harassment does not have a very long legal history. Only in the last quarter of this century, the social scientists and lawyers have started raising the issue through writings, protests and demonstrations. The most systematic study on the subject can be attributed to the American law professor Catherine Mackinon, who brought the issue its long desired attention through her work "Sexual Harassment for working women". She examined the problem in the context of sex discrimination and seeking legal mechanism to deal with the problem, recommended that the victims of sexual harassment must receive the same kind of legal protection as what is available to the victims of sex discrimination.Many social scientists and psychologists have also tried to define the sexual harassment comprehensively to deal with type of situations women are forced to. Thus before analysing the situation in India a general explanation of the sexual harassment can be looked in to.
Sexual Harassment has been defined both in psychological as well as legal perspectives in recent past. A noted American lady psychologist Fitzgerald has identified three types of sexual harassment: (a) gender harassment (b) Unwanted sexual attention, and (c) sexual coercion.
Gender harassment involves generalised sexist comments and behaviour that convey insulting, degrading and/or sexist attitudes towards a specific group of women (e.g. Minority group) or women in general without specifying a particular woman. Unwanted sexual attention consists of unwelcome sexual behaviour that is unwanted and unreciprocated by the 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 is reference to work place implies the solicitation or coercion of sexual activity by promise of job related reward or threat of job related punishment.
Fitzgerald’s description covers almost all cases of harassment that modern working women face in the work place. This broader and more inclusive description shows that it is not only a smaller number of women who are sexually harassed sometimes during their working life but a substantial number of women have greater chance of being sexually harassed at the hands of those who possess organisational power to hire and fire.
Supporting this definition of Sexual harassment, U.S. supreme court has spelled out two specific categories of sexual harassment: quid pro quo (sex for job) and hostile work environment. In quid pro quo type of harassment, the sexual activity is requested as a condition for giving a job, promotion, favourable work assignment or job related assignment or some 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 if she does not go along with 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 the perpetrator is found to be an employer or supervisor who has the capacity to confer benefits or impose sanctions. Hostile work environment, as defined by equal employment opportunities commission (EEOC), 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 work environment may be created by making sexual comments, requests, looks, lewd gestures, so on so as to make it difficult for women employees to work under the circumstances. The International Labour Organisation and U.S. Supreme Court in Meritor savings Bank v. Vision recognised that the central issue in sexual harassment is the "unwelcomeness of the conduct". Both in Meritor savings bank as well as in Harris v. Vorklift systems Inc. sexual harassment or hostile work environment has been considered actionable under Title VII of Civil Rights Act, 1964, which prohibits sex discrimination against any individual.
Though the menace affects the women universally but the causes and effect vary in degree. Although with gradually increasing value systems and modernization the traditional roles for men and women are undergoing a change, and women are creating wider niches for themselves in conventional women’s fields as well as in hitherto male bastions. Inspite of lot of advancement, in traditional family structure hasn’t experienced much change in Indian society, therefore women are usually discouraged from seeking employment due to deeply entrenched conventional patterns of female functions, also of course out of concern due to increased chances of exposure to sexual harassment. Still, in India women enter work force for being economically independent and be in a position to exercise their choices, and ensure a secured future or out of economic compulsions. In both the situations, seeking and sustaining the employment as inevitable option places them is a rather vulnerable position against men. Until very recently, sexual harassment or hostile work environment was apparently not a problem in India, since there were hardly any complaints made. So much so, many women prefer to suffer silently all the physical and psychological trauma than reporting it even to their parents, relatives or friends due to apprehension of leaving job or with the fear of stigmatization in the society. Most of the women while venturing for crossing the domestic sphere, are poised for the possibilities of sexual harassment or hostile sexual environment as necessary concomitant of public life. All these factors not only neutralize the laudable claim of equality enshrined in the Constitution of India, it also waters down the benevolent effect of constitutional provision under art 15(3) providing for positive discrimination in favour of women.
Fortunately now under the rising tide of feminist movement and with increased awareness, more and more cases of sexual harassment are coming to light. With the support of various women’s groups and voluntary organisations women undergoing harassment for several years are able to gather enough courage to report the incidents which results in widespread demonstrations and protests. Recently as a result of a protracted struggle of feminist activist for abating this danger, Supreme Court took lead and it recognised in a recent judgement of Vishaka v. State of Rajasthan, sexual harassment as a form of sexual discrimination. This much sought for and progressive step of Supreme Court is result of intensified demands of feminist groups and National Commission of Women in wake of brutal gang rape of a social worker ‘Bhanwari Devi in State of Rajasthan while trying to perform her duty of preventing a child marriage. This incident revealed the hazards to which a working woman may be exposed to and depravity to which sexual harassment can degenerate.
Though the Sexual harassment as a form of sex discrimination is recognised in Vishakha’s case, considerable public attention was drawn to this menace with a case of Rupan Dool Bajaj V. Kanwar Pal Singh Gill. Besides other things this case is significant because of involvement of senior officers of Indian Civil Services, which is the premier service for governance in the country. In this case Supreme Court reversed the judgement of a High Court, wherein the court had quashed the complaint of the victim, Mrs. Bajaj, a senior officer of Indian Administrative Services on some procedural grounds. She had complained of being slapped on her posterior by Mr. Gill, then Director General of Police, in full public view. The allegations involved outraging the modesty of woman under section 354 of Indian Penal Code or insulting the modesty of woman under section 509 of Indian Penal Code. High Court quashed the complaint finding the complained offence too trivial to be cognisable and for the reason of unreasonable and unexplained delay of eleven days in lodging the first information report.
Expressing its gender sensitive attitude Supreme Court held that offence of outraging the modesty of a woman is made out. In the absence of any definition of modesty in the Penal Code court applied its dictionary meaning "in the present context" which is given as "womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct (in man or woman), reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions." Court concluded that keeping in view the total fact situation it could not but be held that alleged act of the accused in slapping the appellant on her posterior amounted to outraging her modesty for it was not only an affront to the normal sense of feminine decency but an affront to the dignity of the lady – sexual overtones or not, notwithstanding. While rejecting the defence contention of absence of intention and of the triviality of offence the Supreme Court attempted to view the whole thing from a woman's perspective. Court held that intention was immaterial if offence was likely to outrage the modesty of appellant, as the alleged act was committed in the presence of a gathering comprising the elite of society.
The gender sensitivity and sagacity of the court was reflected in not accepting the defence of triviality with the recognition that keeping in view Indian society Mrs. Bajaj or any woman of ordinary sense and temper would never buy even bigger ignominy and trauma by bringing in such a complaint if the ignominy and trauma to which she was subjected to was so slight.
Before this in another trend setting judgement in 1991Supreme Court had pronounced that the right to privacy is a part of right to live under article 21 of the Constitution and a woman even of easy virtue is entitled to privacy. This observation was made by the court while reversing the order of High Court where the latter had set aside the dismissal order of a police inspector on proven charges of perverse conduct against a woman. The main defence argument of accused was the unchastity of that woman. High Court found it dangerous to believe upon the uncorroborated version of such a woman who her self had admitted of being a woman of easy virtue for the reason of having illicit, extra-marital relation with another man. Evidence was also led to show that she was known as a "Vagrant" in locality. Considering all the facts and circumstances Supreme Court concluded that an evidence of a woman could not be thrown over board merely because she is a woman of easy virtue. Court further said "Even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. So also it is not open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate it against her wish. She is equally entitled to protection of law."
This decision is indeed commendable specially considering norms of Indian society where chastity is the biggest virtue expected of a woman and where a single deviation is sufficient to diminish her credibility.
The Vishaka’s case and recognition of sexual harassment as a distinct offence was culmination of the series of judgements, where in court was trying to provide remedy under conventional criminal law. Finally founding them to be inadequate Supreme Court laid down guidelines in this regard in Vishaka’s case. The court acknowledged that the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment at work place. The three-judge bench of Supreme Court, which also included a woman judge, acknowledged the arduous efforts of women activists and non governmental organisations for focussing attention towards this aberration and assisting in finding suitable methods for realisation of the true concept of " Gender Equality".
Accepting the general recommendations of CEDAW (Convention for Elimination of Discrimination against Women) in respect of its Art. 11 Supreme Court defined sexual harassment and laid down guidelines to be respected as enacted legislation, till the same is replaced by a formal legislation enacted for the purpose.
As per the judgement sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
Physical contact and advances.
A demand or request for sexual favours.
Sexually coloured remarks.
Showing pornography.
Any other unwelcome physical verbal or non-verbal conduct of sexual nature.
It is considered discriminatory when the women has "reasonable grounds" to believe that her objection would disadvantage her in connection with her employment or work environment or when it creates a hostile work environment.
It shall be duty of employer or other responsible persons in work place or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
PREVENTIVE STEPS
The judgement provides that all employers or persons in charge of workplace whether in public or private sector should take the following steps to prevent sexual harassment:
OTHER MEASURES
The judgement provides for criminal proceedings to be initiated by the employers, when such conduct amounts to a specific offence under Indian Penal Code or under any other law. It furthers, states that when such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
Employers are instructed to ensure that witnesses are not victimised or discriminated against while dealing with complaints of sexual harassment. Further, the victims of sexual harassment should have option to seek transfer of the perpetrator or their own transfer.
An employer would be required to create an appropriate complaint mechanism for redress of the complaint made by the victim. This complaint mechanism would provide, where necessary, a complaints committee that would be headed by a woman and not less than half of its member would be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such complaints committee should involve a third party, either a non- governmental organisation or other body who is familiar with the issue of sexual harassment.
This judgement had a silver lining in otherwise grim scenario of insecurity for women given the still prevailing feudalistic tendencies.
Even this judgement of Supreme Court could have been interpreted as another hollow declaration and as an occasional display of sensitivity but for another very recent judgement of Supreme Court in March 1999 in case of Apparel Export Promotion Council v/s A.K. Chopra. Relying on the decision in Vishaka's case Supreme Court recognised the demoralising effect of such incidence upon women and once again emphasised that present civil and penal laws in country are not well equipped to deal with the cases of sexual harassment at work place.
Being aware of the utmost necessity of checking rapidly growing menace of sexual harassment especially for working women, Supreme Court said: "In a case involving charge of sexual harassment or attempt to sexually molest the courts are required to examine the broad of possibilities of a case and not get swayed by insignificant discrepancies or narrow technicalities or dictionary meanings 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."
Three-judge bench of Supreme Court delivered this landmark and progressive judgement while reversing the order of Delhi High Court. The High Court had quashed the punishment order given by a disciplinary committee for accused on the charges of molesting a subordinate lady employee. High Court opined that punishment was not justified and adequate since the accused had only tried to molest and he had not in fact molested the complainant. Interpreting the word molestation this court had observed "The entire disposition relates that accused A.K. Chopra tried to touch her but he did not manage to make even slightest physical contact with the lady. There being no physical contact between accused and the lady there cannot be any attempt to" tried to molest" on the part of accused".
To every body's surprise even after proven misconduct of the accused which did not withstand the test of decency and modesty and which projected unwelcome sexual advances the learned bench of High Court did not find the matter serious enough and decided to reduce the punishment of the accused.
Under the rising pressure of feminists groups against such decisions Supreme Court could not avoid undoing the great harm purported to be done to working women. Accepting prevention of sexual harassment and abuse as a part of constitutional mandate in India, the court declared "The contents of Fundamental Rights guaranteed in our constitution are of sufficient amplitude to encompass all facets of gender equality including prevention of sexual harassment and abuse. The courts are under a constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of a female at place of work is incompatible with the dignity and honour of a female and needs to be eliminated and that there can be no compromise with such violations, admits of no debate".
The refusal of bench to accept even an unqualified apology by the accused is exemplary of its determination to leave no stone unturned to eradicate this evil. Court rightly asserted that any lenient action in such a case is bound to have demoralising effect on working women. Sympathy in such cases is uncalled for and mercy is misplaced.
The above mentioned cases reveal the all pervasiveness of the menace irrespective of the status, age and type of employment of the victim. Another similarity in all cases is that all these decisions are result of reversal order by the Supreme Court of the High Courts' and lower courts' decisions. This demonstrates that large section of judiciary is still marred by the traditionally biased and feudalistic attitude towards working women, which surely is one of the major reasons for large number of unreported cases. Very often cases of sexual harassment at work place are not taken seriously and even after filing of the complaint protracted and expensive legal struggle along with stigmatisation of the victim usually are the deterring factors for the victim to bring any such incident to public attention.
It can not be denied in gradually changing scenario for women in India these judgements are big supporting factors and can go a long way in achieving real gender equality. In wake of these pioneering decisions it is expected of all departmental authorities or other responsible person to follow the norms and guidelines in right earnest to realise the dream of true equality.
Universal condemnation of and growing concern towards rape has resulted in intensified demands from the rising demands for stricter laws and severe punishment for rape, the most heinous crime against women world wide. Social and cultural conditions, certainly not the mitigating factors in the heinity of the crime but can surely be the worsening factors for victims. Socially and culturally dependent expectations for chastity, virginity as the biggest virtue for any unmarried girl, stigmatisation of victims by the society, resulting dishonor not only for the victims but for the whole family, are some of the reasons typical for Indian society which cause the virtual death for the victim of rape irrespective of age. In addition to extreme physical and psychological trauma due to violation of the person, rape in most of the cases ruins rest of the life for the victim, mainly due to diminished chances of prospective marriage for an unmarried girl and estranged family relations for a married woman.
Strong overtones of male domination in the society leads to in ostracisation of the victim of rape instead of the accused. Besides, often due to feudalistic and callous attitude of the judiciary and the police water down the deterrent effect of the laws, with high acquittal rate or conviction with minimal punishment. Since every case of sexual assault or rape brings more disrepute and humiliation to the victim as compared to culprit, the decision to report a case and seek legal remedy is often suicidal. Being a part of rape trial as a victim is nothing short of playing lead role in a pornographic serial show. During the whole trial procedure implicitly it is conveyed that rape or sexual assault is basically due to women's own fault for being in company or men who by virtue of their patriarchaly legitimized superior status are authorized to the act the way they wish to.
Stringent laws to deal with this crime and effective enforcement for desired sufficient deterrence has always been prime target of the women's movement in India. Demands for change in allegedly male biased laws intensified in BO's with a supreme court decision in a rape case popularly known as Mathura rape case. In this case Supreme Court had, by reversing the conviction order given by High Court, acquitted the accused on grounds of non resistance by the victim and for not raising any alarm by the victim. The fact of being used to sexual intercourse in past also weighed against her in view of the apex court.
The decision had send shock waves amongst all women organisations and groups especially due to the obvious insensitivity of judges towards prevailing social reality. Given the vulnerable position of many sections of society due to existing social and economic disparity acquittal of accused keeping in mind their presumed authority as police personnel had great demoralising effect. Pressurised by tremendous activities of feminist groups certain amendments were introduced in Indian Penal Code 1860 through Criminal Law (Amendment) Act. 1983. All demands of feminists were not acceded but many important changes listed below were made through this act :
These changes especially the inclusion of category of custodial rape and enhanced mandatory punishment was indeed a welcome and progressive step. Another success in matters relating to sexual violence was through judgement of Supreme Court in 1995 in case of Delhi Domestic Working Women's Forum v/s Union of India. In this judgement while drawing attention to draw backs in existing system specially in respect to provisions relating to compensation to victims the bench has recommended special consideration for rape victims. Union of India was directed by court to set up a Criminal Injuries Compensation Board and to furnish victims with compensation.
Though many of the recommendations of the Women's organisations and Law Commission were not acceded to through in this amendment act, but even these changes were certainly encouraging for the feminist movement. Still, the fact of increasing rape cases and proportionately much lower conviction rate advised against any kind of complacency since the societal attitude does not bear the whole responsibility for the same, the laws are still found wanting to deal with this menace effectively. In absence of another legislative move in this direction the courts in India have taken the lead and through a series of progressive judgements the courts have clarified many of the relevant provisions often attacked for their maleness, in Indian Penal Code, Indian Evidence Act and Criminal Procedure Code.
Realising the important position of judges and the role they can play in society a Supreme Court Judge acknowledged that " A socially sensitized judge is a better statutory armor against gender outrage then long clauses or a complex section with all protection writ on it.
For the sake convenience laws discussed and clarified by the Supreme Court can be analysed under following heads:
a) Victim of rape - Is she an accomplice!
Following the application of cardinal principle of criminal law i.e. presumption of innocence of accused , the burden of proving rape is on the prosecution, thus treating victim almost like an accomplice with the burden of proving the absence of positive consent in the act. In a series of cases Supreme Court has stressed that victim of rape cannot be regarded as an accomplice or can not be put on par with an accomplice. She has to be treated like a victim and be imparted sympathetic treatment.
b) Necessity of Corroboration:-
Provisions of Indian evidence Act demands the corroboration of the testimony of the victim with other independent or circumstantial evidences to avoid the risks of false implication. Supreme Court, though has not pronounced against the requirement of corroboration but has asserted that the corroboration of the testimony of prosecution in a rape case is not required as a rule of law and the requirement of the same is a question of fact varying from caseto case. It has been held that a conviction can not be held illegal merely for the absence of corroboration, Judges were exhorted to use rule of corroboration as rule of prudence, to be used only in rarest of rare cases and to dispense with it when circumstances tell so. It is praiseworthy that judges who are often criticised for their biased and feudalistic attitude while dealing with rape cases, recognised the fact that to equate a woman who is a victim of the lust of another with an accomplice to a crime is to insult womanhood.
Expressing a true understanding of Indian conditions and consequences a victim of rape is forced to face, Dr.Anand J. present Chief Justice of India, then a judge in the case commented:
"The inherent bashfulness of the females and tendency to conceal outrage of sexual aggression are the factors which court should not outlook. Seeking corroboration of her statement before relying upon the same as a rule in such cases amount to adding insult to injury. Why should evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion ?
c) Absence of Injuries and Presumption of Consent:
Absence of injuries on the victim as well as on the accussed normally weigh against proving rape as they are taken to imply non resistance by victim or absence of any use of force by the rapist, thereby consent of the leading to presumption of positive consent of the victim. In 1977 the Supreme Court in famous Mathura Rape case had acquitted the accused on the above grounds. Lately, with changed perceptions and also under the rising pressure of feminist movement, Supreme Court has ruled that absence of physical injuries do not warrant the presumption of positive consent on her part. Not only the concept of consent has been broadened, it has also been acknowledged that in certain circumstances resistance can not be expected, thus in such cases absence of injuries should not be fatal to the case.
d) Character of Woman:-
Character assassination and descriptions of passed sexual history of the victim are the most frequently used weapons of the defense side for disproving rape. Indian Evidence Act aids the accused with its provisions under Section 155 clause 4- This section provides that credit of witness (in cases of rape very oftenthe only witness may be the victim herself) may be impeached for when a man is prosecuted for rape or for an attempt to ravish, it may be shown that the prosecturix was of generally immoral character. This provision is undoubtedly sexist and discriminatory since bad character of accused is irrelevant in criminal proceedings but supreme court has in some recent judgements tried to mellow down the invidious effect of this overtly biased provision. Supreme Court has ruled that right to privacy is a part of right to life under Art.21 of the Constitution and even a women of easy virtue is entitled to privacy. It was concluded that considering all facts and circumstances an evidence of a woman can not be thrown overboard merely because she is a woman of easy virtue. Court categorically stated "Even a woman of easy virtue is entitled of privacy, it is not open to any and every person to violate her person as and when he wishes. She is entitled to protection of law if there is any attempt to violate her against her wish".
In another case , Supreme Court held that "courts should not make observations that prosecuterix is a loose moral character and further expected from the court to use self restraint." Given the strongly entrenched patriarchal norms in Indian society following statement of Supreme Court is really trend setting and encouraging: : "Even if the prosecuterix has been promiscuous in a sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone of everyone".
Keeping pace with this progressive trends recently a bench of Supreme Court rejected the plea that woman of easy virtue can not be raped. These judgements reflecting the changed perceptions of judiciary are laudable, especially in Indian context where chastity is the biggest virtue expected to a woman and where a single deviation is sufficient to diminish her credibility.
e) Delay in lodging report:
Delays in lodging first information report of the crime by the victim or by the family of the victim is most frequently used plea to quash investigation or the trial procedure. Supreme Court has acknowledged the obvious reluctance of the victim and her family in Indian setting to report such cases considering the ignominy it might bring. The court has held on member of occasions that the delay in lodging compliant should not be fatal for the case.
f) Interim Compensation in rape cases:
In 1995 as a result of strong demands of many womens' forums for supporting and rehabilitating rape victims, Supreme Court stressed on the need for compensation to such victims. Subsequently in another case in 1996, Supreme Court awarded interim compensation to the victim during pendency of ciriminal case.
The above mentioned account of the progressive and sensitive attitude of judiciary shall not be allowed to eclipse the harsh reality in the form of statistics of increasing rate of cases of rape and proportionately low rate of conviction. Without denying the element of comparatively high percentage of reported cases than in past due to better awareness and strong support rendered to victims by feminist groups in the growing figure of rape cases more and more incidents of rape is indeed a cause of great concern.. Unfriendly legal system, apathetical attitude of a large section of judiciary and police, negative reaction of society towards victim considerably diminish the deterrent effect of these apparently stringent laws. Even a very quick and cursory analysis of most of the cases involving rape and sexual assault draws attention to fact of quashing of complaints and discharge of accused on frivolous technical and procedural grounds. Judges and investigating agencies, more sympathetic towards violators eyeing the victim with suspicion for crossing the barriers created for women in this society of men, pronounce light sentences. Large number of cases end with clear acquittal of the accused or minimal punishments as judge are allowed to reduce the minimal mandatory punishment.
The present state of affairs is crying hoarse for metamorphosis in the attitude of society, police as well as judiciary. Not only this whole criminal justice system requires a thorough overhauling. Keeping in view social conditions, there is utmost necessity for recognition of martial rape, inclusion in custodial rape of categories like rape by men in position of social and economic authority as rape is very often used as a weapon of revenge against various disadvantaged groups or to subdue workers and other weaker sections of the society.
Progressive guidelines of the supreme court on various occasions for use of allegedly biased provisions are often overlooked exigencies of practical situation leave wide scope for the exercise of discretionary interpretation by lower judiciary. A close perusal of several recent judgements in rape trials, reveals that accused persons in most of the cases have been acquitted by the trial courts on one or more of the following grounds:
Some of the overtly biased and sexist provisions Indian Evidence Act which invite hostile procedure can be listed as under:
As per Sec.133 the evidence of victim of rape is to be treated almost like the evidence of an accomplice requiring corroboration. It is an accepted rule that evidence of accomplice is to be viewed with suspicion. Accomplice is a person who is party to the crime and the provision in the evidence act to treat victim of rape as an accomplice is kind of punishing her only for being born a female.
According to Sec.155 clause 4 past sexual history and character of the victim are relevant for diminishing the credit of her evidence. While according to Sec.54, previous bad character of accused is irrelevant in criminal proceedings. This privilege is often used by defence to slander and tarnish the reputation of rape victim without authorising a woman to do the same to a man.
Under Sec.146, during cross examination, queries about chastity of victim, about her sex life with accused are allowed. The victim is forced to relive the whole unfortunate incident verbally, converting the very effort to seek justice into a worst nightmare than rape itself.
Except in the limited cases of custodial rape and gang rape, where burden of proof is reversed, the burden of proving rape is on the prosecution.
Special categories like custodial rape, though cognisable, but no arrest can be made without warrant or without an order of magistrate. Often there is enough time between lodging first information report and obtaining warrant during which much of the evidence can be destroyed as the accused being in more advantageous position may tamper with the evidence.
Martial rape was included through amendment in 1983 but in a very limited sense. Section 376 – A protects the rights of a separated wife, who is separated judicially or by some custom or usage, but not of a wife who is living apart from her husband but is not formally separated under some procedure. Such woman continues to be deemed property of her husband. Who can legally exercise free access irrespective of her consent.
Undoubtedly, feminists attacks on these provisions are justified and imminent necessity for change can not be denied. But considering the prevailing typical conditions in India, arising for diversity and extreme disparity level, the whole situation demands very careful handling. Application of same kind of arguments in favour of or against most of these provisions adds to the complexity of most of these seemingly simple but abuse prone propositions. Vulnerability and higher probabilities of exploitation of socially and economically weaker section are the plea commonly used pleas for eliminating the statutory requirements of signs of resistance, presumed consent, physical injuries, sufficient corroboration of evidence for failures in conviction. A close observation of contemporary Indian scene reveals that same kind of arguments very much form the basis of requirement of corroboration or for viewing the victim with suspicion to avoid false implications.
Does women who appear essentially to the male as a sexual being is used as a tool for exploiting not only her own self but also for others and in both the situations it is "she" who is at the receiving end. All the encouraging judicial pronouncements do appear as a silver lining to the otherwise very grim reality of increasing cases of sexual violence against women, but still there is a very large gap between rhetoric and reality. The changing perception succeed to a certain extend in keeping the optimism alive where the grip of obsolete traditions has started to ease yet the terrain is very difficult and long and success though a farfetched but not an impossible task.
This study began with a narration of paradoxical status of women in India. Throughout the study it has emerged that somehow this status continues and various laws contribute to this paradox. Every time the law, which is very often alleged to be an oppressor has come to the rescue of women, was seen to be favouring them it has done so half heartedly. The state, the governing bodies, the polity have extensively used the inherent flexibility of legal system in their vested interests. Women empowerment has always been professed as an objective of government during various modifications and amendments in law, but given the deeply entrenched patriarchal system, they could never be achieved up to the desirable levels. The law reformers had to tread a fine line in giving women better rights but not seeming to take away any of the privileges of men. In Indian context this patriarchy is further shaped by an additional but the most important element, Religion.
Religion, which defines the lives of people in India, and is supposed to give meaningful ways of life has been used since a long as an instrument to oppress women. In this study, the dichotomous behaviour of state is well exemplified by analysis of the laws relating to marriage, divorce, adoption, guardianship inheritance and maintenance. In each of these laws, not only women are disadvantaged again men, but there exists extreme discrimination between women of different communities, and again it is religion and respect of religious freedom which are used as insidious excuses for tolerating such discrepancies. It is true that every state is composed of hierarchy of interests and every time while giving priority to one, other interests have to be subordinated. Probably, that can be accepted as valid justification by a state in post partition independent India for extending equality, though only partial, to Hindu women, and deciding to do nothing for women of minority communities, but the disturbing realisation is that in a long period of more than fifty years after independence, women could never assume priority in hierarchy of interests.
This gives rise to an important question if the government regulated by political and religious considerations, can be relied upon for further positive action. Inspite of all the negative points in Indian situation, State and law are the most important sites for struggle. This is further substantiated by the fact that even in case of reforms for Hindu women, besides the state's own zeal to appear progressive, it had to concede to the pressure of reformers, activists and women's movements. This intensifying crusade for women's cause have also been successful in extorting out some more important concessions from the state for empowerment of women. Inclusion of special categories of crime against women like 'dowry deaths' and 'custodial rape' are some of the encouraging example. On the same lines are 73rd and 74th amendments in the constitution, which have set an unique example by providing governance rights to women at local level both in rural and urban area. Furthermore, it is to be remembered that every society is composed of hierarchy of normative values and in this there are people (though miniscule) at the top of hierarchy, at some stage, who transcend their times and are critically aware of oppressiveness of certain values, which their society professes, adores and suffers in. Such people themselves being conscientising agents can act as conscientizing multiplier to generate sensitivity in the society. It is heartening to realise that Indian society is not completely devoid of such agents. Indian judiciary presents a strong example of the same. Series of decisions in case of 'Pratibha Rani,' 'Sarla Mudgal,' 'Geeta Hariharan', 'Vishaka', 'Shah Bano', 'Mary Zaharias' which have been cited in this study are only a very few examples exhibiting the sagacity and sensitivity of the judiciary, which gives the women all the reasons to keep the optimism and struggle thriving.
The title of the study "Success of Feminist Jurisprudence in India" may bring in the allegations of euphoric, over optimistic attitude oblivious of reality, keeping in view deplorable situation of women suffering on the gallows of discriminatory personal laws and overtly as well as covertly male biased society. Success of Feminist Jurisprudence can only be appreciated when the political, economic, social and cultural background of a vast and populous Nation like India is comprehended well.
Admittedly large number of women are still reeling under oppression and the graph of crimes against women is on rise. But this should be reason to fight for their cause even more vigorously than to despair. In fact the statistical rise in the crime graph is also partly because of the fact that women are finding themselves courageous enough to report the crimes and look forward to justice, a phenomenon which was earlier missing.
The change in situation of women, though only in a section, may not be extraordinary, but is indeed commendable considering the traditional nature of Indian society. Legal system and law reforms often experience much more constraints in India than anywhere else in the world due to peculiarities and diversities of Indian context. In this country, any reform, any new measure has to pass through the tough battle the balancing forces of traditionalism and modernization.
Many players have played a role in bringing social reform through law in India much against the wishes of the fundamentalist who rely either on religious dictat or find recluse in the convenient traditional values. First and foremost are the reformers who lead the women's movement and raised their voices against discrimination and social evils perpetuated in the name of religion or traditions. These people found support of many a visionary political leaders who were striving to develop the nation and restore its ancient glory.
With the technological and economic changes the society has undergone many changes in the post independence era, which brought in new values largely influenced by the west. These values shunned the patriarchal dominance and gave a new impetus to the feminist movement in India which has shaped the law as it exists today. However the strong resistance of the traditional forces of society stratified on caste and religious lines have on many occasions managed to create hurdles in the implementation of the law and with every such attempt they tend to create an environment which shifts all the blame on the law itself. Experiences have shown that slowly society is drifting away from the influence of such negative forces and this has been possible with the support of legal system.
It may thus be concluded that isolated but numerous efforts have been effective in shaping feminist jurisprudence in India. It has gained a foothold in the country and is passing through a transitional phase. It is zealously combating retrogressive fundamentalist forces with its inner strength supported by international community. There is a courage of conviction and immense potential which is finding increasing support at all levels. the time is not very far when the discipline will be institutionalised not only in the educational system but also in the political, social and economic systems of the country and the world may see India emerge as a major force in the global community to support the cause of feminist jurisprudence.