WOMEN

AND

LAW

ABHISHEK MOHANTY
B.A.LL.B. 8th SEMESTER
 1.1 THE STATUS OF WOMEN INDIAN SOCIETY

In most of the human societies, social differentiation between the sexes, the male and female
existed and in majority of them women were assigned an inferior position. In recent times in the
socialist societies equality of status has been assigned to women, but it is often legal than
existential. Thus women accounting for nearly one half of the human population live in
perpetual subordination to the other half the men.

Women are considered primarily as reproducers although they invented agriculture and
produce about fifty percent of world’s food. Pregnancy is viewed as a period of physical
disability. “The dependency period of a human infant is one of the longest and the women have to
bear the brunt of it. These biologically anchored but culturally reinforced feminine roles gave
birth to the argument that human biogrammer is geared to sexual division of labour in society.”

In the modern industrial societies the status of women deteriorated still further.
According to Marx the distinction can be explained in terms of values. Values are of two types,
use values and exchange values. In pre-modern societies men and women performed different tasks
to produce for subsistence, hence both were producers of use values. As specialization in work took
place and production became market oriented, men started producing most for selling and they
became producers of exchange value, while women continued to be the producers of use value.
The distinction between wok and employment became clear. Although women worked at home but
they were not paid for it, hence they were considered unemployed. The terms “working women” and
“mere housewife” indicate the importance attached to work outside home and insignificance of
work done at home. Thus man as the main producer of exchange values was called “bread-
winner” and woman despite the lot of work being done at home was given the status of “dependent”.

CULTURAL CONTEXT

In order to understand the status of women in India we have to study the problem in
socio-cultural context. Our ancient holy literature, such as Rigveda shows evidence that,
women are fully the equals of men as regards to access to and capacity for the highest knowledge,
even the knowledge of the absolute Brahma. Rigvedic society was based on monogamy and
was patriarchal. The Institution of monogamy is the recognition of the high social status of
women. The Brihadaranya Upanishad mentions a ritual by which a person prays for the birth of a
daughter to him, who should be Pandita or learned lady

The majority religion in India, Hinduism assigned a lower status to women. The ancient law
giver Manu prescribed, “A women must never be independent”. The life of an ideal Hindu wife
is to be spent in the service of her husband, she ought to be a “pativrata”. A Hindu women was
expected to be an obedient daughter, faithful wife and devoted mother. Marriage was the single
important event in her life and it took place soon after puberty. Thus child marriage came to be a
norm which implied that, young girls were not involved in decision making process of selecting their
husbands. The custom of Sati, the proscription of widow remarriage even when she is widowed as a
child, the insistence on dowry etc. rendered a Hindu women a non-person. In addition prohibition of
inter religious and inter-caste marriages compelled some women into prostitution or commit suicide.

Islam religion in theory accepted social equality to men and women but does not allow
women to have equal participation in religious field. Islamic marriage is a contract, still it does
not give equal rights to men and women, polygamy is allowed and easy divorce is granted to the
husband only. The middle class Muslim Women are not allowed to participate in social
activities and they are expected to observe pardah especially while moving in the streets. Most of
Muslims in India are patrilineal except the Mopla Muslims in Kerala and Lakshadweep.
Classical Christianity does not accept equality to women but it emphasizes monogamy and
nuclear family, which ultimately results in freedom of women, and individuality. Indian Christian
women are still not given equality in the religious matters and property rights. Thus the position
of women in India has remained subordinate to men. In general female child is less wanted and less
cared as compared to the male child. The girl is given secondary position in the household, in
respect of food, dress, schooling, healthcare etc. They are rarely assigned outdoor responsibility.
The type of education, subjects selected, occupations projected as desirable to them lead to
reinforcement of an inferiority complex among them.
 POLITICAL CONTEXT

The status of women towards the last part of the British rule in India i.e. in the first quarter
of 19th Century, some remarkable social changes took place. The social reformers like Raja Ram
Mohan Roy, Ishwar Chandra Vidyasagar, M.G. Ranade Dayanand Saraswati, Swami Vivekanand, Dr.
Anne Besant, Sister Nivedita contributed significantly to the social reform movement in India, and
aimed at liberating women by fighting against social evils like sati, purdah, child marriage,
female infanticide, prevention of widow remarriage, devadasi system etc.

The Indian nationalist movement under Gandhiji’s leadership contributed towards a

significant change in the prevailing attitude towards women. Thousands of men and women both
from rural and urban areas joined the Non-cooperation Movement in 1921 and Civil
Disobedience Movement of 1930 in response to the call of Gandhiji and faced police and prisons.

Indian Independence in 1947 has marked a major step in the march towards improvement of
social status of women and also in the process of development of women. As India
emerged as a Sovereign Democratic Republic in 1950, it provided a strong judicial base to the
status of women at par with men in the male dominated society. The constitution of India which
came into effect on 26th January 1950, guaranteed to every citizen men or women, some basic
Fundamental Rights which emphasized “equality of status and of opportunities and also
enumerated the principles of welfare state in its Directive principles, of state policy. The
Part III of the constitution includes Articles 14, 15 and 16(2) 21, 23 39(a), 39(d), 39(e) etc.
prescribe equal treatment for both men and women in all economic and social activities including
educational and cultural activities. The Directive principles as enumerated in part IV of the Indian
Constitution provide the base for equality of women in India.

Indian Government enacted several progressive laws such as Hindu Marriage, and
Succession Act 1956, Right to inheritance Act, Hindu Women’s Right to property Act 1973,
Medical Termination of Pregnancy Act 1971, Dowry prohibition Act, Family Court Act 1984
etc. aimed at bringing about significant changes in the status and privileges leading to
legal empowerment of women. The passing of Muslim women’s protection of Rights and Divorced
Act 1986 was a step in the direction of improving the status of Muslim Women also.

The need of organizing and uniting women workers led to the formation of women groups
or Mahila Mandals throughout India for promoting the welfare and achieving development of
rural and under privileged women. In order to achieve the same objective at the state level,
The State Social Welfare Advisory Boards (SSWAB) was setup in 1954-55 in various states. It
helped in promoting functional coordination and to strengthen linkages with the Central Social
Board at the apex level and women organizations and voluntary agencies at the grass root level.
The other steps taken by the government include strengthening of women workers
organizations, and emphasizing equal pay for equal work, maternity benefit and providing crèches
for children; the state government focused on promoting women’s education as a major welfare
strategy, and health programmes related to nutrition, family planning and child welfare and
promoting literacy among women.

The Government of India had appointed the Committee on the Status of Women in India
(CSWI) which concluded in its report that, women as a group have been adversely affected
by the process of economic transformation. There was also a debate in Parliament. According
to the recommendations of the committee, the National Plan of Action was worked
out in 1976, which provided certain guidelines.

In order to accelerate the pace of development of women, the Government of India, created a
separate department in 1985 named “Department of Women and Child Welfare”. The department
functions as a national nodal agency and is in charge of planning and executing various
programmes for women and also monitors other programmes related to women in other departments

and Ministries, both at the national and state levels. In addition Women Development
Corporations were established in various states during 1986- 87, as plan priorities. These orporations
are in charge of coordinating and monitoring women specific schemes and programmes especially
those for the development of economically backward women”. They were setup in different states
to take up various issues related to women, such as dowry, divorce, atrocities on women etc.

The Government of India thus created Institutional framework under plan priorities for the
development of women and also introduced special schemes for women to be implemented
throughout the country. In 1987 “Support to Training and Employment Programme (STEP) was
launched for upgradation of skill, training and providing subsequent opportunities for the
economically backward women, Rashtriya Mahila Kosh (RMK) was created in 1993 to meet out
the needy of small loans and credit of poor, Rural Water Supply Programme (RWSP) and
Minimum Needs Programme (MNP) which had special importance for women in rural areas
having problems of drinking water. Other agencies such as ‘Council for Advancement of people’s
Action and Rural Teaching (CAPART) are working for providing aid through institutional
arrangements. The National Prospective plan for women (1988-2000) led to the setting up of State
Women Development Corporations in various states of India.

More than 90 percent of rural women in India are unskilled, restricting them to low paid
occupations. Women generally have no control over land and other productive assets, which
largely excludes them from access to institutional credit and renders them dependent on high cost
informal sources of credit to secure capital for consumption and productive purposes. Agricultural
wages for women are on average 30-50 percent less than those for men.

WOMEN’S RIGHT IN INDIAN CONSTITUTION

The framers of the Indian Constitution were inspired by the Universal Declaration of
Human Rights and they saw to it that the essence and the Spirit of the Universal Declaration
was incorporated in the Constitution. The inspiration is evident in the Preamble to the Constitution.

Gender Justice and the Indian Constitution: The elimination of gender-based

discriminations is one of the fundamentals of the constitutional edifice of India. The commitment to
gender equality is well entrenched at the highest policy making level in the Constitution of India. A
few important provisions for women are mentioned below in brief.

Fundamental Rights (Part III): Article 14 of the constitution of India ensures to women the
right to equality. Article 15(1) specifically provides for affirmative and positive action in favor of
women by empowering the state to make special provisions for them; and the article 16 of the
Constitution provides for equality of opportunity to all, in matters relating to public employment
or appointment to any office and specifically forbids discrimination inter-alia on the ground of
sex. These articles are all justiciable and form on the basis of our legal Constitutional history.
Directive Principles of State Policy (Part IV): Article 38 requires the State to secure a
social order in which justice social, economic and political for the promotion of welfare of the
people. It requires the state to strive to eliminate inequalities in status, facilities and
opportunities. Clearly the intention of the makers of the Constitution was to ensure that
equality would not be only of opportunity but in reality. Article 39 puts down the principles of
policy to be followed by the state which include that the state should direct its policy toward securing
the right to an adequate, means of livelihood, that there is equal pay for equal work, that the
health and strength of workers men and women, are not abused and that citizens are not forced by
economic necessity to enter avocations unsuited to their age or strength. Article 42 requires the state
to make provision for securing just and humane conditions of work and for maternity relief.
Article 46 requires the state to promote with special care the education and economic interest of the
weaker sections of the citizen. Clearly then the objective is to strive towards a gender just society.

Fundamental Duties (Part IV: A): In part IV:A of the constitution incorporated through
nd
42 Amendment Act, 1976, our natural obligation to renounce practices derogatory to the dignity
of women has been elevated to the status of fundamental duty by article 51:A. The Equal
Remuneration Act, 1976, the Maternity Benefit Act, 1961, the Dowry Prohibition Act, 1961 and the
Immoral Traffic (Prevention) Act, 1956 are some of the enactments which owe their existence to the
above mentioned provisions of the Indian Constitution.

The Constitution 73rd and 74th Amendments Act of 1993: The 73rd and 74th Amendments
(1993) to the Indian constitution have served as a major break through towards enhancing the
women’s participation in democratic process. These amendments provided for reservation of
33.33 per cent of elected seats. There is also a one-third reservation for women of posts of
chairpersons of these local bodies. This is likely to be widened by constitutional amendment for
women’s representation in legislatures by reservation.

Judicial Approach towards Gender Justice:

In Vishaka v State of Rajasthan AIR 1997 SC 3011 the Supreme Court observed that
equality in employment can be seriously impaired when women are subjected to gender-specific
violence, such as sexual harassment in the workplace.
Therefore, the Supreme Court issued guidelines to ensure that the women have equal
working conditions and are protected from sexual harassment. Vishaka was public interest class
action and came up before Supreme Court of India at the instance of certain social activists and
Non-Government Organizations (NGOs) seeking to prevent sexual harassment of working women
in all work places. Their grievance was that while working women remained vulnerable to this,
neither the legislature nor the executive government was taking any effective preventive measure in
this behalf. Therefore, the plaintiffs approached the apex court for the enforcement of the
fundamental rights of the working women as guaranteed by the Constitution.

Since Article (15(3) itself hints substantive approach, its application for giving special
educational facilities, for giving representation in local bodies and for protection in places of
work has a substantive dimension. Upholding a service rule that preferred women in recruitment to
public employment to the extent of 30% of posts, the Supreme Court stated in Government of A. P.
v. P. K. Bijayakumar AIR 1995 SC 164 to say that under Article 15(3) job opportunities for women
cannot be created would be to cut at the very root of the underlying inspiration behind this Article
Making special provision for women in respect of employments or posts under the state is an integral
Part of Article 15(3)”.

Interpretation of the guardianship law in the light of Article 15 by the Supreme Court in Githa
Hariharan v. Reserve Bank of India AIR 1999 SC 1149 could equate the position of mother to that of
father in the matter of guardianship.
A Woman shall not be denied a job merely because she is a woman : In its land mark
judgment the Apex Court in Air India v. Nergesh Meerza , has held that a woman shall not be denied
employment merely on the ground that she is a woman as it amounts to violation of Article 14 of the
Constitution. In the present case where in airhostesses of Indian Air Lines and Air India have
challenged the service rules which state that: Airhostesses shall not marry for the first four years of
their joining, they will lose their jobs if they be become pregnant. They shall retire at the age of
thirty five years, unless managing director extends the term by ten years in his discretion. The
Supreme Court suggested that the first provision is legal, as it would help in promotion of the family
planning programmes, and will increase the expenditure of airlines recruiting airhostesses on
temporary or adhoc basis, but the second and third provisions to be declared as unethical,
callous, cruel, detestable, abhorrent, unreasonable, and unconstitutional and an open insult to
Indian womanhood. And thus, the above decision of the Apex Court has greatly elevated the status
of working woman.

Beauty Contests: Whether Violation of Constitutional Provisions: This question was

raised before the Andhra Pradesh High Court in C. Rajakumari v. Commissioner of Police,
Hyderabad. It has been held that if a beauty contest indecently represents any woman by
depicting in any manner the figure of woman, form, body or any part thereof in such a way so as
to have the effect of being indecent, or derogatory to or degrading women, or likely to deprive,
corrupt an injure the public morality would be volatile of the provisions of the Indecent
Representation of women (prohibition) Act, 1986 and also unconstitutional as it violates Articles 14,

21, and 51:A of the Constitution of India.

Indian Constitution and Special Provisions for Women and Children: As aforesaid
under Article 15 of the Indian Constitution the State is empowered to make special provisions for
women and children. For instance making of special seating arrangement in trains or buses is in no
way unconstitutional.

(a) Reservation of Seats for Women in College: The Bombay High Court in Detta treya
v. State of Bombay, has held that reservation of some seats in women’s colleges is not
unconstitutional. The court observed that establishment of educational institution exclusively
for women is not hit buy Article 15 of the Constitution.

(b) U.P. Court of Wards Act, 1912: Proprietorship Relating to Property: In Ram Raj
Rajeswani Devi V. The State of Uttar Pradesh,9 wherein the issue related to a discriminatory
provision in a statute was adjudicated under the U. P. Court of Wards Act, 1912. According to this act
a male proprietor could be declared incapable in managing his property only one of the five
grounds mentioned therein and that to after giving him an opportunity of showing cause as to
why such a declaration should not be made, a female proprietor could be declared incapable to
manage her property on any ground and without giving her any show cause notice. The Allahabad
High Court held that this provision was bad because it amounts to discrimination on the basis of sex
which is violative of Article 5(1) of the Constitution of Indian, 1950.

(c) Constitutional validity of Section 437 of the Code of Criminal Procedure,

1973 : The mandate of Section 437 of the Code of Criminal Procedure permits discrimination in
favor of woman even if there appears to be a reasonable ground for believing that they have been
guilty of an offence punishable with death or imprisonment for life. In other words this section
prohibits release of a person accused of a capital offence on bail except women and children under
16 years age of Sick or infirm persons. In Choki v. State of Rajasthan , the Rajasthan High Court has
held that it is valid on the ground that it makes special provision for women and therefore it is
protected under Article 15(3) of the Constitution.

(d) Granting Licenses for Opening Liquor Shop: The Allahabad High Court in Smt.
Savitri v. Bose, has held that Article 15(1) of the Constitution protect women from being
discriminated on the ground of sex. Accordingly, the decision of the excise authorities to prefer
men over women in granting licenses for opening of liquor shops was struck down as coming
within the prohibition of Article 15(1). It was further held that such a discrimination was not
permitted under Article 15(3) of the Constitution which authorizes the State to make special
provisions for women as the special provision can give some advantage to women and can not be to
their detriment.

(e) The Immoral Traffic (Prevention) Act, 1956 and the Indian constitution: Article 23
of the Constitution provides the right against exploitation. This constitutional provision prohibits
traffic in human beings. In this context traffic in human beings includes ‘devadashi system’. The
Apex Court in Vishal Jeet v. Union of India, observed that trafficking in human beings has been
prevalent in India for a long time in the form of selling and purchasing of human beings for
prostitution for a price just like that of vegetables. On the strength of Article 23(1) of the
Constitution, the legislature has passed the Immoral Traffic (Prevention) Act, 1956 which
aims at abolishing the practice of prostitution and other forms of trafficking including ‘devadasi
system’. The court further observed that this Act has been made in pursuance of the International
Convention which signed the declaration at New York (USA) on 9th May 1950 for the prevention of
immoral traffic. In the view of the above statutory position and circumstances, the Apex Court upheld
the validity of the said Act. Thus on the strength of the Constitutional powers the state is permitted
to enact special laws exclusively for women and children, even the State may make preferential
statute to promote development of the women in every walk of life.

(f) Women’s Reservation in Election to Local Bodies, Employment: Reservation of

seats for women in local bodies and in educational institutions can not be taken to mean as
discrimination of ground of sex. The Supreme Court in T. Sudhakar Reddy v. Govt. of Andhra
Pradesh. had upheld the constitutional validity of proviso to Section 316 (1) (a) of the Andhra
Pradesh Cooperative Societies Act, 1964 and of the Rules 22(c) and 22 A (3) (a) framed
thereunder relying upon the mandate of Article 15(3) of the Constitution read with the said
rules providing for nomination of two women members by the Registrar of the managing
committee of the cooperative societies with a right to vote and to participate in the Committee’s
meeting. The Supreme Court upheld the validity of these provisos on the ground that
Article 15(3) of the Constitution permitted the making of special provisions for women.

(i) Mother can act as a natural guardian during the life time of father : The Apex
Court in Ms. Githa Hariharan v. Reserve Bank of India, 20 held that the father can not claim that he
alone was the natural guardian and his wife could take no decision without his permission. It was held
that the mother of a minor was relegated to aninferior position on the ground of sex alone since her
right as a natural guardian is made cognizable after the father, which was violation of Articles 14 and
15 of the constitution on that ground. Hence, the mother can act as a natural guardian of the minor
during the life time of the father who would be deemed to be absent. In the above case the court
observed that the expression “natural guardian” is defined in Section 4(c ) of the Hindu Minority
and Guardianship Act as any of the guardian mentioned in Section 6.

DIRECTIVE PRINCIPLE OF STATE POLICY AND WOMEN

Under the Constitution of India, 1950 the directive principle of State policy is the reflection of
governance that India is a welfare democratic state. This policy envisaged equal rights to work, equal
pay for equal work, adequate means of decent and dignified livelihood to both men and women,
these are guaranteed under the directive principles of state policy. Part IV of the Constitution
containing Articles 38, 39(a) (d) and (e), 42, 44 and 45 deal with the welfare and development of
women.
According to Article 39 (a) the State should direct its policy towards securing that the
citizens, men and women equally have the right to an aedequate means of livelihood. This Article
provides equal right for all citizens, irrespective of sex, to aedequate means of livelihood.
As per Article 39 (d) of the Constitution in the states that three should be equal
pay for equal work for both men and women. Thus, the state is under constitutional obligation to
direct its policy towards securing that there is equal pay for equal work for both men and women.

(a) Principals of ‘equal work’ is a Constitutional goal : The Apex Court in Randhir
singh v. Union of India, has expressed the opinion that the principle of ‘equal work’ is not declared in
the Constitution to be a fundamental right but it is certainly a constitutional goal. Article 39 (d), the
principal of equal pay for equal work is deducible from those Articles and may be properly
applied to cases of unequal scales of pay based on no classification or irretional classification
though, those drawing the different scales of pay do identical work under the same remployer. In
the present case the Supreme Court has held that the principle of ‘equal pay and equal work’,
though not a fundamental right, is certianly a constitutional goal and therefore, capable of
enforcement through constitutional remedies under Article 32 of the Constitution. The
doctrine of ‘equal pay for equal work’ is equally applicable to both mean and women, even the daily
wagers are also entitled to the same wages as other permanent employees in the department
employed to do the identical work.1 Similarly, in State of Haryana v. Rajpal Sharma, the Supreme
Court has held that the teachers employed in privately managed aided schools in the state of
Hayarana are entitled to the same salary and dearness allowance as is paid to teachers employed in
Government schools. If the kind of work is not identical then it does not matter if men are paid
more. But, in case work is of the same type both men and women should be paid euqlly without any
discrimination.

(b) Men and Women Workers to be protected Equally : According to Article 39(e)
of the Constitution the health and strength of workers i.e, men and women and that of the
children of under age to be protected equally. They should not be forced to work under inhuman
and hazanrdous condition. In view of this Article the State shall direct its policy towards enouring the
health and strength of workers (men and women) and the of under age children are not forced by
economic necessity to enter a vocation unsuited to their age and strength. In M.C. Mehta v. State of
Tamil Nadu, It has been held that not in view of Article 39 the employment of children within the
match factories directly connected witht the manufactouring process of matches and fire works can
not be allowed as it is hazardous. Children can, however, be employed in the process of packing
etc. away from the pace of manufactouring.

(d) Uniform Civil Code and Gender Justice, Equality : Article 44 the constitution
requires that state shall eneavour to secure for the citizen a uniform civil code throughout the
terriory of India. But women still experience inequalities and injstice. The founding fathers of the
constitution were aware of the gender injustice and sexual inequality of women and they
incorporated Article 44 of the Constitution with the aim that it may be exercised in future at
appropriate time. It is really unfortunate that even after 50 years of independence the State
did not find it necessary to make any serious endeavours to rectifies this constitutional
obligation.
In a Land mark judgment in Sarla Mudgal v. Union of India, the Apex Court has passed
direction to the Central Government to take a fresh look at Article 44 of the Constitution which
enjoings the State to secure a uniform Civil Code which, according to the Court is imperative for
both protection of the oppressed and promotion of national unity and integrity. The above direction
was given by the Court while wealing with the case where the question for consideration was whether
a Hindu Husband married under Hindu law, conversion to Islam, without dissolving the first
marrage, after be can solemnize a second marriage. It has been held by the Apex Court that such a
marriage will be illegal and the husband can be proseuted for bigamy under Section 494 of the
Indian Penal Code, 1860. In the present case the Court further held that a Hindu marriage
continues to exist even after one of the spouse converted to Islam. There is no automatic
dissoultion of Hindu marrage. It can only be dissolved by a decree of divorce on any of the ground
mentioned in Section 13 of the Hindu Marriage Act, Accordingly, the second marriage a Hindu after
his conversion to Islam was void in terms of Section 494, I. P.C and the husband was liable to the
prosecuted for bigamy.

As to the question regarding Uniform Civil Code the division bench (Justice Kuldip Singh
and R. M. Sahani), in their concurrent but separate judgements in the aforesaid case observed
that since 1950 a number of governments have come and gone but they6 they have failed to
make any serous effort towards impementing the Constitutional Commitment made under Article
44 of the Constitution. Resultantly, the problem today is that many Hindus have changed their
religion and have converted to Islam only for the purpose of esceaping the consequence of bigamy.
This is so because Muslim Law permits more thatn one wife to the extent of four. Justice Kuldip
Singh said that Article 44 of the Constitution is based on the concept that there is no necessary
connection between religion nd personal law in a civilised society. Marriage succession and life
matters are fo a secular nature and therefore they can be regulated by law. No religion
permits deliberate distoritions. Much apprehension prevails about bigamy in Islam itself.
Ismalmic Countries such as Tunisia, Morocco, Iran, Pakistan, Syria and several other Islamic
Countries have codified their personal law to prevent its abuse. Even in America it has been
judicially acclaimed that the prastice of polygamy is injurious to public morals; even though some
religion may make it obligatory or desirable for its followers. The said Honourable Judge further
said that his abuse of polygamy can be regulated by the State just by prohibiting human
secrifice or the practice of ‘Sati’ in the intest of public order.

The full Bench of the Bombay High Court in Prgati Varghese v. Cyril George Varghese has
ordered deletion of Section 10 of the Indian Divorce Act under which a Christian wife had to prove
adultery along with cruelty or desertion while seeking a divorce on the ground that it infringes it
imfringes the fundamental right of a Christian Woman to live with human dignity as
pravidedunder Article 21 of the Constitution. In the present case the court observed that Section
10 of the Indian Divorce Act Comples the wife to continue to live with a man who has deserted
her or treated her with cruelty. Such a life of a woman is inhuman.

Whether the children of Muslim divorced woman are entitled to claim maintenance under
Section 125 of the Code of Criminal Procedure, 1973 inspite of the legal position that they are
governed by the Muslim personal Law i.e. Muslim Women (Protection of Right on Divorce) Act.
1986. In Noorsabakhatoon v. Mohd. Quasim the Apex Court has held that a divorced
Muslim woman is entitled to claim maintenance for her children till they become major. The
court further held that both under the Muslim Personal Law and under Section 125 of the Code of
Criminal Procedure, 1973 the obligation of the father was absolute when the children were living
with the divorced wife. The Court makes it cleanr that the children of Muslim parents
are entitled to claim maintenance under Section 125 of the Code of Criminal Procedure 1973 for the
priced till they obtain majority or are able to maintain themselves, whichever is earlier and in case of
female, till they get married.
In the aforesaid case the Supreme Court said : “We have opted for a secular republic,
secularism under the law means that the State does not owe loyalty to any particular religion and
there is no state religon. The Constitution gives equal freedom to all religion and every one has the
freedom to follow and propagate his own religion. But, the religion of individual has nothing to do in
the with the socio:economic laws of the State.”

In view of the above said judgement the Apex Court, now it is the constitutional duty of
the Government to make the uniform civil code to remove inequality and oppressuim of women
folk secially in moatrimnial mather. The concept of religion can not be allowed to be used as a
tool to abuse and exploit women. Thus, the need of uniform civil code is most warrauhed to
achieve constitutional moandate as enshriend under Article:44 of the Constitution.

It is to restated that in India the Supreme Court has taken note of injustice faced by the
women particularly in matters of personal laws. In Mohd. Ahmed Khan v. Shah Bano Begum the
Supreme Court observed in the matter relating to the Muslim husband’s liability to maintain his wife
beyond “Iddat”, who is not able to maintain herself. The court held that Section 125 of the Code of
Criminal Procedure, 1973 which imposes such legal obligation on all the husbands is secular in
character and is applicable to all religions. In this case the Supreme Court emphasised the need for
condisfying a common civil code and said :

“A Common Civil Code will help the cause of national integration by

removing disparate loyalities to laws which have contflicting ideologies. No community is likely to
bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the
duty of securing a Uniform Civil Code for the citizens of the country and unquestionably, it has
the legislative competence to do so :

It is unfortunate to note that there is no Uniform Civil Code in India, however, there is a
Uniform Criminal Code which is very much in existence. Consequently, the criminal law is
applicable to all citizens irrespective of the lact also what religion they belong to there is no
iniformity in Civil Laws pertaining to divorce, maintenance, marriage, adoption and
succession governing the Hindus, Muslims, Christains and Parsis etc. There are different laws like
the Hindu Marriage Act the Hindu Minority and Guardianship Act, the Hindu Succession Act,
the Hindu Adoption and Maintenance Act governing the personal matters of Hindus. Whereas
Muslims are governed by their personal laws like the Sharicat Act, the Dissolution off Muslim
Marriage Act and the Muslim Women (Protection of Rights on Divorce) Act etc. Similarly, the
Christians in India are governed by the Indian christian Marriage Act, the Indian Divorce Act
and Chochin Christian Succession Act etc. Parsis are governed by a different set of their personal
laws. Thus, it can be said that there is no uniformity in these personal laws based on different
religious.

Article 44 of the Constitution of India, in its Part IV directs the State to make a Uniform
Civil Code throughout the territory of India. Since, this Constitutional provision falls under the
chaphter namely, “Directive Principles of State Policy,” it can not be enforced by the court of law. It is
submitted that no gender justice or gender euqlity can be achieved in its true sense, without making
a Uniform Civil Code Containing the provisions derived from all the religions, isnacted
immedicately.

(g) PIL regarding eradication of prostitution : Wherein the Public Interest litigation
filed on the existing affairs of prostitution. The judges been differing on the opinion of issuing
direction for erediction of prostitution. Since they differed in their opinion, Judges were not
justified in issuing directions in exercise of powers under Article 142 of the Constitution. It was
held that the proper course was to refer the matter before the Chief Justice of India for placing the
question before larger bench of the Cout.
DISCRIMINATION AGAINST WOMEN UNDER PERSONAL LAWS

In India an array of personal laws exist. Generally, the applicability of these laws is based
on the religion professed by different communities. The Hindus, Buddhists, Jains and Sikhs are
governed by Hindu law. Muslim law applies to Muslims. The Christians are governed by Christian
law and Parsi law applies to the Parsi, Jews have their own personal law. The only common feature
of all these different personal laws is that, they are prejudiced towards women and shows favoritism
to men.

Gender-Based Discrimination under Hindu Law

 Marriage and Divorce Laws

The ancient Hindu Law discriminated women in all respects. The marriage laws were not
equal for men and women. The nature of Hindu marriage is described under the Vedas. According
to Vedas a Hindu marriage is an indissoluble union till eternity. It is defined as a union of “bones
with bones, flesh with flesh and skin with skin, the husband and wife become as if they were one
person. Hindu marriage is a sanskara or a Sacrament. It is indissoluble in the sense, the woman
cannot ask for another husband, even if he is cruel, drunkard, impotent, insane or whatsoever. It is
eternal and continues for lives in the sense that she cannot take another husband even after his
death. Husband and wife become one person in the sense she cannot have any individuality of her
own. But the husband could enter into the sacramental fold of marriage any number of times
because unlimited polygamy was permitted under Hindu law before enactment of the Hindu
Marriage Act, 1955.

The Hindu Marriage Act, 1955 has removed these disparities to a large extent. It has made
monogamy the rule for both men and women. Woman can dissolve her marriage and freely enter
into another marriage according to law. The Hindu Marriage Act, 1955 has enumerated the grounds
for divorce. Section 5 of the Hindu Marriage Act, 1955 lays down the conditions for a marriage. It
says both the parties to the marriage should have the capacity to give consent to the marriage.
Section 12(c) of the Act says if the consent was obtained by force or fraud then the marriage
is voidable. If the consent is not obtained at all then it will not affect the validity of the marriage.
This applies both to the husband and the wife. But practically, what happens in the male
dominant society is that, only the consent of the boy is obtained, and consent of the girl is ignored.
The boy may be much older to her, absolutely not suitable for her but without taking her consent the
marriage takes place. However, on this ground the marriage cannot be dissolved. She has to
bring it under the grounds for dissolution of marriage provided under the Hindu Marriage Act, 1955,
otherwise dissolution of marriage is not possible. If the marriage was solemnized without her
consent or against her wishes, she still continues to be in the marriage fearing society or
because of parental pressure. But under Muslim law, if there is no free consent, then there is
no marriage. If the marriage has taken place against his or her wishes, the marriage will be
void. This provision is not available to Hindu women. Though divorce is recognized under all the
personal laws only a woman who has her own income or who has wealthy parents to support can
opt for it. The laws relating to maintenance of a divorced woman and her children are not strong
enough to give protection for her.

Property Rights of Women

There were different schools of Hindu law prior to codification. Under these schools of law
only coparceners are the owners of the joint family property. Women could not be a coparcener and
hence had no property rights. It was in 1937, the Hindu Women’s Right to Property Act was passed.
It conferred property rights to women. But it did not give her absolute right over the property. In
1956, The Hindu Succession Act was passed. It gave property rights to women. Mother, wife and
daughter were made Class-I heirs. The concept of coparcenary that only a son can be a coparcener
and daughter cannot be a coparcener did not change. Even after passing of the Hindu succession Act,
1956, women were not kept on par with their male counterparts. But the Hindu Succession

(Amendment) Act, 2005 has made a drastic change.

Matrimonial Property

It is an unwritten rule in the Indian society that taking care of the household and children is
the duty of women. A man is able to earn money only with the support given by his wife. Only
when she takes care of the household and children he is able to concentrate on economic
growth. But this contribution of the wife is never taken into consideration. Whatever property is
purchased by the couple, by their common effort, is generally purchased in the name of the husband.
Then the property belongs only to the husband. If for some reason, the marriage breaks, then she
has to ask her husband for maintenance. In India we don’t have any law relating to matrimonial
property as it exists in foreign legal systems, where the interests of the women are protected.

Law of Adoption
 The Shastric Hindu Law of adoption differed from one school to another. But the Hindu
Adoption and Maintenance Act, 1956 introduced uniformity in the law of adoption among
Hindus. Under the Shastric Hindu Law, a Hindu woman was permitted to adopt a child only under
rare circumstances. Her right to adopt a child was very limited. Though under the Hindu Adoption
and Maintenance Act, 1956 the right of a woman to adopt a child is recognized, discrimination
against woman continues. According to the Hindu Adoption and Maintenance Act, 1956, a married
man can adopt but a married woman cannot adopt during the subsistence of the marriage. Now
this disparity has been removed by the Personal Laws Amendment Act, 2010.

Gender-Based Discrimination under Muslim Law

Marriage and Divorce Laws

A Muslim marriage called nikah is not a sacrament but a civil contract made for the
purpose of procreation. Consent of the bride and the bridegroom is the basis of this contract. So, if
the parties are adults, then their free consent is essential for a valid marriage, if there is no free
consent, and nobody else’s consent is required, then there is no marriage. In case of minor or
Person of unsound mind consent can be given by guardian. In such cases the minor on attaining
majority can either ratify the marriage or repudiate the marriage. It is called option of puberty.
So, a girl cannot be forced into marriage. Even if she is forced into it, it is not valid marriage. She
can exercise the option of puberty and dissolve the marriage be in favour of his legal provisions seems
to women giving her right to decide about her marriage. But she can exercise the option of puberty,
only when she can support herself or where somebody is there to support her. Under Muslim Law, the
law of maintenance of women after dissolution of marriage is not in favour of women. A Muslim
divorced wife can get maintenance from her husband only during the period of idaat. After that, if
she is not able to maintain her then her children, her parents, her other relatives who will inherit her
property on her death has the liability to maintain her. If no one is in a position to maintain her,
then the court may order the State Wakf Board to maintain her. Like other ‘divorced wives’ who are
governed by other personal laws a Muslim divorced wife cannot get maintenance from her
husband under the criminal Procedure Code. Only when she and her husband agree to be governed
by the provisions of Criminal Procedure Code, 1973 relating to maintenance they can get relief
under the Criminal Procedure Code, 1973. Also under Muslim law unrestricted powers are given to
the Muslim husband to dissolve the marriage. But, a Muslim woman has no such rights. She can
dissolve her marriage only according to the provisions of Dissolution of Muslim Marriage Act,
1939. Hence the grounds available are limited and the same constraint follows. A Muslim
woman can opt for divorce only when she can support herself or somebody is there to support her.

Under Muslim Law a Muslim husband is permitted to have four wives at a time. Quran says:
‘Marry of the women, who seem good to you, two or three or four, if you fear that you cannot do
justice to so many, then one (only)’. But a Muslim woman can have only one husband. If she
contracts a second marriage during the subsistence of the first marriage, then the second marriage
is void. She can be punished for bigamy under the Indian Penal Code, 1860. A Muslim man can
marry a Muslim girl, a Christian or a Jewish girl. But a Muslim girl can marry only a Muslim man. If
she marries a Hindu, Jew or a Christian man, the marriage is void.

Till the passing of the Shariat Act, 1937 the Muslims in India were governed by customary
laws which were highly unjust and were against women. After the Shariat Act, 1937 Muslims in
India came to be governed in their personal matters, including property rights, by Muslim personal
law. But this did not make any major changes in the property rights of women. Under Muslim law,
men and women have equal right of inheritance. If a Muslim male dies, and his heirs include both
male and female, both will inherit the property simultaneously. But a man’s share of the
inheritance is double that of a woman in the same degree of relationship to the deceased. The
quantum of property inherited by a female heir is half of the property given to a male of equal
status. It is a manifest sample of unequal treatment of women under Muslim law.