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Date posted: January 3, 2012

Neena Jose. A  Advocate
Vanchiyoor, Thiruvananthapuram. Kerala

Presented at Seethalayam Training Programme Kerala

Inequality against woman and cruelty towards them had been at many occasions in our Parliament as well as in other sectors came up for discussions at length ended up with achievement of no goals.  Many of them found a theoretical solution but their practical effects were almost nil.  It is a shame on us that in a democratic country like India lacks infrastructure,  support system to implement the laws made by us.  In the circumstances even in this 21st century, it is again an exercise over the same issues unless and until we make aware of the people  about their special rights, obligation and legal support which is available to them.  Some progressive moves on   the  existing laws  and introduction of certain special laws try their maximum input aiming for the development of Indian women.  We could put forward and identify many of the human rights as well as gender issues from the Vienna Accord of 1994 and the Beijing Declaration which acknowledged the necessity of protection of human rights especially that of women and children .

This is an effort to make you people aware of the present scenario of legal side of the issues and the support and machinery which is available as such.  There are certain legal provisions as well as special laws which address the gender issues with  practical support and structure.  Yet, the remedies are not in capsules but in action with  determination and  persistence.

I.  THE CONSTITUTION OF INDIA, 1950

INDIA is a sovereign, socialist,  secular, Democratic  Republic.

The constitution ensures to secure all citizens;

JUSTICE     – social, economic and political

LIBERTY     – of thought, expression, belief, faith and worship

EQUALITY   - of status and of opportunity  and to promote among  them all

FRATERNITY- assuring dignity of the individual and  the unity and Integrity  of the Nation

The basic provisions in Articles 14,15,16,19 and 21 help us to identify our rights ensured by the constitutional law.

ARTICLE 15 is the prohibition of discrimination on grounds  of religion   race, caste, sex or place of birth.

15 (3) says that nothing in this articles shall prevent the state from making any special provision  for women and children.

Article 15 (1)   is  against discrimination of citizen on grounds  of religion, race, caste, sex, place of birth or any of them.  State is prohibited from such discrimination.

Article 15 (2)
No citizen on the above grounds, be subject to any disability, liability, restriction or condition with regard to their access to public places or the use of government machineries or places dedicated to the use of general public.

Article 16    is with regard to the equality of opportunity in matters of public employment on the above grounds.

Articles 21  is an extensive provision of our constitution which addresses many issues  from beauty contests to employment of AIDS patients.  It includes right to life in various forms,

(1) the right to live with human dignity like in   P. Nalla Thampi  V. Union of India,   1985 SC 1133 

(2) Right to healthy environment in M.C. Metha   V. Union of India,  AIR 1987  SC1086 

 (3)  Free education up to 14 years of age in  P.Unnikrishanan V.State of Andra Pradesh,  AIR 1993 SC 2178

II.  INDIAN  PENAL CODE, 1860
It is a penal law as it seems which is also subject of discussion here in  the context of offences against and by woman and their punishments.  The sections like section 268 (Public Nuisance), 271 (Disobedience to Quarantine rules), 274 (adulteration of drugs), 275 (sale of adulterated drugs) 278 (making atmosphere noxious to health) 294 (obscene acts and songs), 304 B (dowry death), section 311 to 318 with regard to causing of miscarriages, of injuries to unborn children, of the Exposure of infants of the concealment of Births, 342 (wrongful confinement)

Section 359 (Kidnapping) 361, 362, 366A, 366B, 372, 373 like kidnapping from lawful guardianship, Abduction, procuration of minor girl, importation of girl from foreign country, selling minor  for the purpose of prostitution, Buying minor for the purpose of prostitution.

Then 375 to 376 D about rape against women in different circumstances and their punishment.  Requirement of the offence is seems to be strange.  Keep in mind that rape is a degradation of the very soul of the helpless female who is subjected to the offence.  Rape victim demands more care and protection than any victim of other offences.

Offences relating to marriage in section 493, 494, 495, 496, 497, 498 about cohabitation caused by a man deceitfully inducing belief of lawful marriage, marrying again during lifetime of husband or wife, marriage ceremony fraudulently gone through without lawful marriage, adultery, enticing  or taking  away with criminal intent a married woman.

And finally and in great importance section 498-A with regard to cruelty of husband or relatives of  husband.

Out of these provisions section 304 B and 498 A, 354 attracts our attention in our context.  We are proud of our heritage and civilization.  But the  Quantum of cases shocks us to make a realization that we are such  a bunch of  barbarians.

Section 304 B
Dowry death –(1) where the death of a woman is caused by any burns or bodily injury or occurs otherwise that under normal circumstances within 7 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. Kaliya perumal V. State of Tamilnadu , AIR 2003 SC  3828.

Sec 498 –A
Husband or relative of husband  of a woman subjecting her to cruelty whoever being husband or the relative of the husband  of a woman subjects such woman to cruelty shall   be punished with  imprisonment  for a term which may be extend to three years and shall also liable to fine.

Cruelty means any willful conduct that drives the woman to committ should be with a view to get any property or valuable  security B.S.JOSHI.V. STATE OF HARYANA,  AIR 2003 SC 1386

Section 354
Assault or criminal force to woman with intent to outrage her modesty-  whoever assaults or uses criminal force to any woman intending to outrage or knowing it to be likely that he will thereby  outrage her modesty, shall be punished with imprisonment  of either description for a term which may extend to two years, or with fine,  or with both.   Roopan Deol Bajaj V. KPS Gill, 1995 (6) SCC 194 

III.  PROTECTION OF WOMEN FROM DEMESTIC VIOLENCE ACT, 2005
Domestic  violence undoubtedly a human rights issue and a serious deterant to development.  The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain.  Where a woman is subjected to cruelty by her husband or his relatives, it is an offence under section 498 A of the Indian Penal Code.  The civil law does not address this phenomenon in its entirety.  The Domestic Violence Act covers those women who are or have been in a domestic relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity,  marriage or through a relationship in the nature of marriage or adoption.  In addition,  relationships with family members living together as a joint family are also included.  Even those women who are sisters, widows, mother, single woman or living with the abuser are entitled to legal  protection under the  Act.
Section 2 deals with definition of “aggrieved person,”  child, compensation order, custody order,  domestic incident report, domestic relationship, domestic violence, dowry, Magistrate, Medical facility, monetary relief,   service  provider, shared household  and shelter  home.

  • Section 3 is all about   the  kinds  of abuses like  physical, sexual, verbal/emotional and economic abuse.
  • Sec.7 is about  duties of Medical facility
  • Sec.12  Application to Magistrate for getting reliefs for an aggrieved person.
  • Sec.17  Right to reside in a shared household.
  • Sec.18  Protection orders.
  • Sec 19    Residence orders
  • Sec 20   Monetary reliefs
  • Sec 21   Custody orders
  • Sec 22   Compensation orders
  • Sec 23  Power to grant interim exparte orders.

Aggrieved person & Sec 12 Chithrangathan V.Seema 2007 (4) KLT 424.

Alternative  ACCOMODATION SECTIORS 17 &19 S.R. Batra V.Smt. Taruna Batra , 2007 (3) KLT SN 8

Section 2(q) 18 & 19

Rima Mukkerjee. V.State of West Bengal,AIR 2009 (NOC) 2841 (cal)

IV. THE DIVORCE ACT  1869
With a view to uniformity in practice in the several branches of jurisdiction the Act   provides that the procedures of Code of Civil Procedure shall be followed.  It is the law relating to the divorce of persons professing Christian religion.

Sec. 10     Grounds for dissolution of marriage.

Sec. 10 A  Dissolutions of marriage by mutual consent

Sec. 41     Custody of children -  Unsubstantiated allegations of chastity and adulterous behaviour by husband amounts to cruelty.

James. K.Awaran V. Jhansy Reetamma George, 2009 (3) KLT 786.

V.   DOWRY PROHIBITION ACT, 1961
 Sec . 2 – what is dowry ?

Any property or valuable security given or agreed to be given either directly or indirectly by one party to a marriage to the other party  to the marriage,   by the parents of either party to a marriage or by any other person to the either party to the marriage or to any other person,   at or before or anytime after the marriage in connection with the marriage of the said parties.

Does  not include  the  dower or Mahr in case of Persons to whom the Muslim Law applies.

  • Sec.  3-  Penalty for giving and taking  dowry.
  • Sec. 4 – Penalty for demanding dowry
  • Sec. 7 – Abetment of suicide.

Even if there is no marriage there can be demand of dowry and are not excluded from the purview of Sec 304 B and Sec 498 A of Indian Penal Code. AIR 2009 SC 2684

VI. HINDU WIDOWS REMARIAGE ACT, 1856.
Hindu succession Act  as well as the marriage laws have not made any special protection or provision to a Hindu woman.  In earlier Indian society remarriage of Hindu widow was prohibited by custom.  This Act made the remarriage and inheritance of Hindu widows lawful.

Sec. 14- Inheritance from former  husband. Cherlotte Sugathan.V.Cherlotte Bharathy, AIR 2008 SC 1467

VII. Immoral traffic (prevention) act, 1956.
An Act to provide in pursuance of the international convention signed at Newyork for the prevention of immoral Traffic.

  • Sec. 2- Definitions
  • Sec. 3- Punishment of keeping brothel
  • Sec 5- Procuring, inducing , or taking person for the sake of prostitution
  • Sec.6- Detaining a person for prostitution
  • Sec. 9- Seduction of a person in custody.

Sexual intercourse with a male and female inside a room will amount to  prostitution only if sexual abuse or exploitation is done for a commercial purpose.

2009 (2) KLT 7 

VIII. Juvenile justice (care and protection of children) act, 2000
Deals with welfare of children mainly orphaned, abandoned and adopted.

  • Sec . 2-  Definition clause
  • Sec.3  -  Juvenile Justice Board
  • Sec  8- Child welfare committee
  • Sec 12, 15,16,49,53 are important.
  • Sec 49- Juvenile in conflict with law.  Whether the accused was a   Juvenile on the date of occurrence Voters list is not decisive .  2009(7) SCC 415.

IX. Medical termination of pregnancy act,  1971
Sec. 3 is very important

Ordinarily a pregnancy can be terminated only when a medical practitioner is satisfied that  a continuance of the pregnancy  would involve a risk to the life of the pregnant women or mental health or when there is a substantial  risk that if the child were  born, it would suffer  from such physical or mental abnormalities as to be seriously handicapped.

A welfare institution of Government cannot take a decision about termination of pregnancy of  victim even though she is an orphan/mentally retarded / rape victim etc.

Sujitha Sreevasthava and another V. Chandigrah Administration 2009 (4) KLT (SN) 29

X.  Maternity benefit act, 1961
Centre providing 100% funds. State not utilizing such funds

Sec. 28-  Modification and introducing of a New scheme.

Janani Suraksha Yojana

AIR  2008 SC 495

The employees are eligible  for 135 days leave with full salary and emoluments for a pregnant lady as maternity benefit.

The same benefits are available on MTP if it is claimed.

XI.  Muslim women (protection of rights on divorce)  act , 1986.
An Act to protect the rights of Muslim Woman who have been divorced by, or have obtained divorce from their husbands and to provide for matters connected there with or incidental thererto.

Sec. 2- Definition clause

Sec. 3- Mahr or other properties of Muslim  woman to be given to her at the time of divorce.

Sec.4  – Order for payment of maintenance.

Payment must be enough to take care of future needs of the woman in the prevailing socio economic scenario.

2009 (3) KLT 37

Maintenance is available for any woman divorced by way of Talaq, Khula or Mubarat.

XII. Pre-conception and pre-natal diagonostic techniques (prohibition of sex selection) act, 1994
Sec 5,6-  Maintenance of accurate records.

2009 (1) KLT (SN) 51

Sec 4 (3)

No procedural lapse but an independent  offence.

Sec. 28- A complaint can be filed by any officer authorized on that behalf by the appropriate authority
XIII.  Registration of marriages (common) act,  1908,

Registration of marriages (common) rules, 2008

Rule-17- solemnization & registration of marriages

Parties to the marriage-personal presence.

2009 (3) KLT  251

XIV.  The indecent representation of women (prohibition) act , 1986
Sec 2- Definition clause

Sec. 2 ( c)- Indecent representation of woman

Means the depiction in any in manner of the figure of a woman her form or body or any part thereof in such a way as to have the effect of  being indecent or derogatory to  or denigrating women or is likely to deprive, corrupt, injure the public morality or morals.

Sec. 7-  Offences by companies.

Sec.9 –  Protection of action taken in good faith.

XV.  Kerala womens commission act, 1990
To provide he constitution of a womens commission to improve  the status of women in State of Kerala and to enquire into unfair practices affecting women and for matters connected therewith or incidental thereto.

Sec. 4- Application of other laws not barred.

Sec.15- Powers of the commission.

I t is only a guideline.  You can research further about the above and other laws including Family Law, Criminal Procedure Code etc.

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