The United Nations, in the year 1980 has observed that “Women constitute half the world’s population and perform nearly 2/3rd of its work. They receive 1/10th of the world’s income and less than 1/100th of the world property. “According to 1991 census, in India, women represent 48.1% of the country’s population. In this situation, justice for women seem like a mirage.
Status of women in different human societies of the world is different. In almost all the present and contemporary societies, it is discriminatory and prejudicial. Nearly all human societies in different parts of the world are male dominated. Males are active part and the females are only passive part of the different society. In some societies, they are only chattels, contractable, saleable and endowed with the duty to serve males and elder females having no material and worthwhile rights. In theory they are respectable, but in practice they are the subjects of all sorts of ill-treatment. Gender inequities throughout the world are among the most all pervasive though deceptively subtle forms of inequality. Today as we stand at the threshold of the 21st century, still we are unable to boast of a society, where there is total gender equality or gender equity.
In his Due Process of Law-Lord Denning said in 1981
“A woman feels as keenly, thinks as clearly, as a man. She in her sphere does work as useful as man does in his. She has as much right to her freedom to develop her personality to the full-as a man. When she marries, she does not become the husband’s servant but his equal partner. If his work is more important in the life of the community, her’s is more important in the life of the family. Neither can do without the other. Neither is above the other or under the other. They are equalsâ€.
The Constitution of India is a basic document that has empowered the women within the framework of the plenary provisions of Articles 14, 15(3), 21, 39(a), 51A(e) and preamble. In this Country “WE THE PEOPLE†gave to ourselves a Constitution, which guarantees justice, social, economic and political. In the matter of equality Article 14 confers on men and women equal rights and opportunities in the political, economic and social spheres. Article 15 prohibits discriminations against any citizen on the grounds of religion, race, caste, sex, etc. Article 15(3) makes a special provision enabling the State to make affirmative discriminations in favor of women. Similarly, Article 16 provides for equality of opportunities in matter of public appointments for all citizens. Article 39(a) lays down that the State shall direct its policy towards securing all citizens, men and women, equally, the right to means of livelihood, while Article 39(c) ensures equal pay for equal work. Article 42 directs the State to make provision for ensuring just and humane conditions of work and maternity relief. Above all, the Constitution imposes a fundamental duty on every citizen through Article 51A(e) to renounce the practices derogatory to the dignity of women. The question, however, is: Have the women been able to reap the benefits provided for them under the Constitution of India? The answer, unfortunately is not encouraging. There is a long way to go to achieve the goals enshrined in the Constitution.
In tune with the various provisions of the Constitution, the State has enacted many women-related legislations, to protect women against social discrimination, violence and atrocities and also to prevent social evils like child marriages, dowry, rape, practice of Sati, etc. The Equal Remuneration Act of 1976 provides for equal pay to men and women for equal work. The Hindu Marriage Act of 1955 amended in 1976 provides the right for a girl to repudiate a child marriage before attaining maturity whether the marriage has been consummated or not. The Immoral Traffic (Prevention) Act 1956 as amended and renamed in 1986 makes sexual exploitation of male or female, a cognizable offence. An amendment brought in 1984 to the Dowry Prohibition Act of 1961 makes women’s subjection to cruelty a cognizable offence. The second amendment brought in the Act in 1986 makes the husband or in-laws punishable, if a woman commits suicide within 7 years of her marriage on the presumption that she must have been subjected to cruelty. A new criminal offence of ‘Dowry Death’ has been incorporated in the Indian Penal Code. The Child Marriage Restraint Act, 1976 raises the age for marriage of a girl to 18 years from 15 years and that of a boy to 21 years and makes the offences under the Act cognizable. The Factories Act of 1948 (amended up to 1976) provided for establishment of a crèche where 30 women are employed (including casual and contract laborers). The Medical Termination of Pregnancy Act of 1971 legalizes abortion by qualified professional on humanitarian or medical grounds. Amendments to Criminal Law made in 1983 provide for a punishment of 7 years in ordinary cases of rape and 10 years rigorous imprisonment in cases of custodial rape. The maximum punishment can extend to life imprisonment. Burden of proof has also been shifted to the accused. A new enactment of Indecent Representation of Women (Prohibition) Act, 1986 and the Commission of Sati (Prevention) Act, 1987 have also been passed to protect the dignity of women and prevent violence against them as well as their exploitation. The alarming frequency of crime against women, led Parliament to enact Criminal Law (Amendment) Act, 1983(Act 43 of 1983) to make the law of rape more realistic. By the Amendment Act, sections 375 and 376 were amended and certain more penal provisions were incorporated for punishing such custodians who molest a woman under their custody or care. Section 114A was also added in the Evidence Act for drawing a conclusive presumption as to the absence of consent in certain prosecutions for rape, involving such custodians.
The Preamble of the Convention of the Elimination of All Forms of Discrimination Against Women (CEDAW), 1981 insists that “the full and complete development of a country, the welfare of the world and the cause of peace require the maximum participation of women on equal terms with men in all fieldsâ€. It is an established fact that women represent the very kernel of the human society around which social change must take place.
The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged that domestic violence is undoubtedly a human rights issue. The state should act to project women against violence of any kind, especially that occurs within the family. The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. The civil law does not address this phenomenon in its entirety. Until 2005, where a women is subjected to cruelty by her husband or his relatives, it is an offence under section 498A of the Indian Penal Code. For the purpose of providing a remedy in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society, the Protection of Women from Domestic Violence Bill was introduced in the Parliament. This came up in the wake of the grave increase in the incidence of crime against women at home which is considered as the safest of all the places for women.
The incidence of crime committed against women during 2005 explores a poignant reality. In the year 2005 all over the nation, 18,384 rapes,3204 dowry harassment cases, 6787 dowry deaths, 58,319 domestic violence cases have been recorded. Of the 18384 rapes, the number of offenders who were parents or close family members are 750, the offenders who were relatives being 1030 and neighbors being 5521. Whenever the existing laws proves futile to be deterrent in it’s inhibition, enactment of new laws becomes inevitable. It is therefore, proposed to enact a law keeping in view the rights guaranteed under articles 14, 15 and 21 of the Constitution to provide for a remedy under civil law which is intended to project the women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. The Protection of Women from Domestic Violence, 2005 having been passed by the Lok Sabha on 24th August, 2005 and by Rajya Sabha on 29th August 2005, received the assent of the President of India on 13th September 2005 and came on the Statute Book as The Protection Of Women From Domestic Violence Act 2005 (43 of 2005). The Preamble of the act speaks thus, “An Act to provide for more effective protection of the rights of women guaranteed under the constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto†For the more effective protection of the rights of women who are victims of domestic violence, this act should be understood in it’s very constitution, and perspective by the implementing agencies such as law enforcement officers, police personnel and judicial, medical and social workers. The responsibility of the fourth estate is more significant. The act should be understood from the context of Indian women’s life and commitment to family system. The problems of the battered women of the shattered families should be dealt with the sensitivity of amalgamating the broken attitudes within the family thereby assuring a safe and legal residence utilizing the strengths assured by sections 17, 18 and 19 of this Act.
For the first time in the legal history of India, this act guarantees right of a woman to reside in a shared household in actual terms Section 17 of this Act insists that every women in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. The Supreme Court has held in S.R.Batra-Vs-Smt. Taruna Batra (AIR 2007 SC 1118) that, “As regards Section 17(1) of the Protection of Women from Domestic Violence Act,2005 the wife is only entitled to claim a right to residence in a shared household would only mean the house belonging to or taken on rent by the husband or the house which belongs to the joint family of which the husband is a memberâ€.
Thus protection of women from Domestic Violence Act 2005 is a very comprehensive statute with the objective of gender sensitizing each and every instrument of our implementing agencies. Revictimization of women victims can be checked by the effective implementation of this act.
Here it is apt to quote Justice Krishna Iyer’s Law and Life that, “The fight is not for women’s status but for human worth. The claim is not to end inequality of women but to restore universal justice. The bid is not for loaves and fishes for the forsaken gender but for comic harmony which never comes till woman comesâ€.
Inspite of our constitution embedded with remarkable pro women provisions of law, yet we have miles to go… to achieve the goals enshrined in the Constitution. Neither the various women-specific and women-related legislations enacted in tune with the rules of law propounded by the Constitution nor the various implementing agencies of these laws could protect women against discrimination, violence and atrocities completely, rather, playing a pivotal role in being a temporary deterrent as against these evils. So the need of the day is to awaken the collective consciousness of our society. Change of heart and attitude is what is needed. Here it is apt to quote Justice (Dr)A.S.Anand : “The fight for justice by females or cry for gender equality is not a fight against men. It is a fight against traditions that have chained them-a fight against attitude that are ingrained in the society, it is a fight against the proverbial Lakshman Rekha which is different for men and different for women. Men must rise to the occasion. They must recognize and accept the fact that women are equal partners in life. They are individuals who have their own identityâ€.
The glamorized role of women in this society should be neutralized. Change must emanate from men and women so that the collective consciousness of both men and women in life should be awakened.
In short the various legislations in respect of women are not sword in the hands of battered women to fight against men, but shields in their hands to protect themselves from the grave odds of this society.
YEARWISE LEGISLATIONS IN RESPECT OF WOMEN
1860 Indian Penal Code
1872 Indian Evidence Act
1925 Maternity Benefit Act, 1925
1929 Child Marriage Restraint Act
1948 Universal Declaration of Human Rights
1948 Factory Act, 1948
1948 Employee’s State Insurance Act, 1948
1950 Constitution of India
1952 Mines Act, 1952
1955 Hindu Marriage Act
1956 Immoral Traffic (Prevention) Act
1956 Law Commission Report on Suppression of Immoral Traffic on Women and Girls
1966 International Covenant on Civil and Political Rights
1968 Employment of Children Act, 1968
1971 Medical Termination of Pregnancy Act
1973 Code of Criminal Procedure
1975 First World Conference on Women, Mexico
1976 Equal Remaneration Act, 1976
1979 Convention on the Elimination of All Forms of Discrimination against Women
1983 Criminal Laws (Second Amendment) Act
1984 Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
1986 Dowry Prohibition (Amendment) Act
1986 Suppression of Immoral Traffic on Women and Girls (Amendment) Act
1986 The Indecent Representation of women (Prohibitions) Act 1986
1986 Child Labour Act, 1986
1987 Legal Services Authorities Act
1987 The Commission of Sati (Prevention )Act, 1987
1988 Child Labour Rules, 1988
1993 United Nations World Conference on Human Rights
1994 The Pre-Natal Diagnostic Techniques (Regulation & prevention of Misuse) Act, 1994
1994 The Pre-Natal Termination of Pregnancy Act, 1994
1995 United Nations Fourth World Conference on Women, Beijing
2004 Special Rapporteur on Violence Against Women warns of Threats to gains on Women’s Human Rights.
2005 Protection of Women from Domestic Violence Act
2006 Protection of Women from Domestic Rules.
VVictory Legal Associates Since 1997 (Madurai Bench of Madras High Court)
ESTABLISHED BY:Smt.L.Victoria Gowri M.Sc., B.L.Madurai Bench of Madras High Court, Madurai & All the Courts in the District of Kanyakumari.