Women and Law
Women and Law
Women’s access to legal equality has been one of serious concerns of the women’s movement. During the social and religious reform movements of the nineteenth century, the movements for women’s rights in India centred on the major problems of infant marriages, widowhood and property rights for women. During the freedom struggle and the discussion on Indian Constitution the major debate on women’s legal equality centred on the Hindu Code Bill. The debate recognises that “women are not accepted as man’s social, economic or political equals and that the discriminations can be effectively reduced, if not eliminated by passing appropriate laws and evolving effective machinery to implement those laws. And so, after Independence we have the phase of legal reform, progressive, bold, legislative initiatives, which translated constitutional commitments and guarantees into laws to help improve women’s legal status.
In the post-Independence period many laws were enacted with the objective of improving the social status of women and ending discrimination and oppression against women. In the following sub-section we shall be examining some of these laws.
Marriage, Dowry and Divorce
In this sub-section we shall discuss some of the major laws relating to marriage, dowry and divorce. In independent India significant laws and amendments to the existing laws have been introduced in these areas.
In traditional India, the institution of polygyny where a man could take more than one wife at the same time was widely prevalent. It is only in the last few decades that polygyny is steadily on the decline. The Government of India has banned polygamy for all the government servants. Monogamy has been accepted in the laws of all other religions except Islam. Muslim law regards marriage as a contract where the husband has the right to have more than one wife and children through other wives. He also has the right to divorce his first wife without having to pay any compensation to her.
This gives rise to a growing sense of insecurity for the wife and the children, who not only have to live at the mercy of the husband and father respectively, but can also be rendered destitute on divorce. Divorce can be obtained among the Muslims by the mere utterance of the term ‘talak’ thrice by the husband. The Supreme Court has upheld Muslim Women’s right to receive maintenance allowance from her former husband but this does not invalidate the very act of polygyny, as it does not stand legally wrong. According to the Committee on the Status of Women in India (CSWI), it is important to ban polygyny in order to establish social justice and equality for Muslim women. The Committee observed that “full equality of sexes can hardly be possible in a legal system which permits polygamy and a social system which tolerates it. The only personal law, which has remained impervious to the changing trend from polygamy to monogamy, is Muslim law. We are of the firm view that there cannot be any compromise on the basic policy of monogamy being the rule for all communities in India. Any compromise in this regard will only perpetuate the existing inequalities in the status of women”.
(ii) Age at Marriage
To curb the practice of getting girls married even before they have attained puberty, the Sarda Act or Child Marriage Restraint Act was introduced in 1929, which fixed the age at marriage for girls to 15 years. This Act applied to all the communities. This was later revised in 1954 when the Special Marriage Act was passed which fixed minimum age of marriage. at 21 years for males and 18 years for females. However, investigations show that quite often marriages of the girls are fixed below 18 years. There are prejudices and certain beliefs underlying this preference for child marriage, especially among rural and backward communities. Dominant is the popular notion of the woman’s role defined in terms of marriage, child bearing and rearing and taking care of all other domestic activities. Thus women are regarded as dependent beings, as they ultimately move from the father’s house to the husband’s house. This largely explains the parent’s reluctance in sending girl children for formal education. Instead they tutor the girl child to handle all domestic chores which are to benefit her after marriage. Added to these above reasons is the loophole in our legislation, which while penalising the performance of child marriage on one hand, recognises the marriage itself is valid.
At the beginning of the 1980s, due to spurt in the incidents of deaths of young married women reported as “dowry victims” there has been an increasing concern of many voluntary organisations to raise their voice in protest against the issue of dowry. They have pressurised the government to take strong action against the practice of dowry.
The Dowry Prohibition Act, 1961 was amended in 1984 and again in 1986 to make the provision of this law more stringent. Under this law court now has powers to act on its own knowledge or on a complaint by any recognised welfare organisation. The offence has been made cognisable for the purpose of investigation. A new section on dowry-murder is added in Indian Penal Code (IPC).
The Indian Evidence Act amended to shift the burden of proof to the husband and his family where dowry is demanded and the bride dies within 7 years of the marriage otherwise than under normal circumstances. This amendment has also made provision for the appointment of Dowry Prohibition Officers and Advisory Committee to look after the issues pertaining to dowry (Government of India 1988). Anti-dowry cells are also established in some important urban centres to tackle this issue effectively.
The personal laws clearly discriminate between the husband’s and the wife’s rights to seek divorce. In the Christian law the husband can seek divorce if the wife has committed adultery. But the wife has to prove a second offence along with adultery (incest, bigamy, cruelty, desertion) in order to obtain a divorce. Similarly, the Muslim law grants absolute power to the husband to dissolve the marriage at his will. The wife on the other hand could seek dissolution only if
a) It’s a divorce on mutual consent.
b) Divorce by agreement on the wife’s giving some consideration to the husband.
c) Divorce where the husband delegates.
The Muslim women are also not given any compensation besides the trivial mehr. or dowry amount. However, the Muslim personal law granted the right to women to keep their children till the age of seven, after the custody cases are decided. But as these cases are dragged on for a long time it became very difficult for the Muslim women and never get the right to keep their children. However, quite often these laws are not implemented because of sheer. ignorance of a majority of the women of their rights to divorce, maintenance and adoption.
It is important to mention here that women and men of all religious communities have the choice of getting married under Special marriage Act, 1954. It has more equitable provisions for marriage and divorce. However, society looks down upon a divorced woman as the ‘culprit’ while man is able to remarry without a stigma. Moreover, most women
suffer from lack of education and economic independence and are left in a desperate situation after divorce. We need to take a note of the amendment in the Hindu Marriage Act as well as the Special Marriage Act in December 2003. It eases the restrictions on judicial jurisdiction in matrimonial matters. Earlier the wife and the husband could file matrimonial proceedings only where they last resided together or where their marriage had been solemnised. The latest amendment allows one to file a case in the family court of one’s current place of residence.
(v) Property and Inheritance
Women are relegated to a secondary status in terms of property and inheritance. The Hindu Laws as well as the Indian Succession Act, 1925, which applies to all minority communities, grant women only negligible ownership rights.
a) The Hindu Succession Act, 1956 was introduced in place of the Mitakshara and the Dayabhaga Schools that had governed Hindu Succession rights for a long time. The position of women was one of the dependence with barely any proprietary rights. The Act of 1956, brought radical changes in the pattern of succession, the most important being equal rights for male and female heirs. But this was later codified in the face of resistance and a power structure was laid down which excluded women from exercising direct control over family assets. The Act makes discrimination between unmarried, married and widowed daughters. It grants residence rights only to unmarried and widowed daughters or daughters whose husbands have deserted them. Thus immovable property in the form of house and land remains under the direct control of males. This is further supported by the virilocal pattern of residence where women are expected to leave their natal home to reside in their husband’s home after marriage. This practice levels credibility to control property by male members in order to avoid partition of property.
In addition, strong filial ties restrain a woman from dragging her brother to the court of laws. On the other hand, in her husband’s house too, the woman does not have direct control over his land and property. This makes her the ultimate loser. Interestingly, at the level of the central government, there are indications of support from some significant elements within the State and initiated measures towards reforming Hindu inheritance laws in a gender equal direction. But these initiatives remained low key due to the lack of adequate local mobilisation by the civil society.
b) Amongst the Muslims too, the son gets two-thirds of the property whereas the daughter gets only one-third. If a man dies leaving only his daughter she gets only half of his estate. The rest goes to distant kindred. The widows face the worst. If a husband dies without a child, she gets only one fourth of the property. If there are children then she gets only one-eighth.
c) Among the Christian community if a husband dies without making a will, his widow is entitled to only one-third or Rs. 5000 of his property. The rest is shared by his lineal male descendants, i.e., his father’s brother or his sons. If he dies leaving no lineal descendants, but has kindred, only half his property goes to the widow. The distant relatives can claim the rest. The Christian complicated by the non-applicability of this law in certain areas: For instance, the Travancore High Court has upheld that the Indian Succession Act should not apply to Christians of Kerala. The Travancore Succession Act governs Christians in Travancore other than Protestants and Latin Catholics. Similarly, the Cochin Christian Succession Act governs Christians in the former Cochin State but not the Anglo Indian or Tamil Christians.
d) Among the Parsis too, a son’s share to his father’s property is twice that of the daughters. If a woman predeceases her husband, her son is entitled to an equal share of the mother’s property along with the daughter, but the daughter is not entitled to the same rights when she inherits the property of the father.
(vi) Work, Remuneration and Maternity Benefits
According to the Equal Remuneration Act, 1973, men and women are to be paid equally for doing the same or similar work. This Act also forbids discrimination on the basis of sex at the time of recruitment and after. However, this Act is not applicable to the unorganised sector where the bulk of the women work.
The Maternity Benefit Act, 1961 provides for the maternity leave to women working in the factories, mines, plantations and in the government and semi-government establishments. Provisions are also made for the crèches to care for the children of women working as contract labourers under the Contract Labour (Regulation and Abolition) Act, 1970 and the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act.