BLS LLB
Monday, 21 May 2018
Thursday, 26 April 2018
PROTECTION OF WOMEN AND CHILDREN - SEM - X (BLS/LLB)
Discuss
fully the provision of maintenance under “Hindu Adoptions and maintenance Act –
1956”
Or
Discuss
in detail the provision of maintenance of wife and children under “Hindu
Adoptions and maintenance Act – 1956”
Application of Act
This Act applies-
(a) To any
person, who is a Hindu by religion in any of its forms or developments,
including
a Virashaiva, a Lingayat or a
follower of the Brahmo, Prarthana or Arya Samaj,
(b) To any
person who is a Buddhist, Jaina or Sikh by religion, and
(c) To any other
person who is not a Muslim, Christian, Parsi or Jew by religion unless it is
proved that any such person would
not have been governed by the Hindu law or by any
custom or usage as part of that law
in respect of any of the matters dealt with herein if
this Act had not been passed.
The provision of maintenance under
“Hindu Adoptions and maintenance Act – 1956”
MAINTENANCE
Under matrimonial laws, a woman can obtain maintenance from her
husband only as an adjunct to proceedings for divorce or judicial separation.
But if woman is a Hindu, then she can claim maintenance and the right to live
apart from her husband without having to file a petition for judicial
separation or divorce. Under Section 18 of HAMA, 1956 a woman can claim
maintenance from her husband on any of the following grounds:
Section 18 - Maintenance of wife
(1) Subject to
the provisions of this section, a Hindu wife, whether married before or after
the
commencement of this Act, shall be entitled to be maintained by her husband
during her lifetime.
(2) A Hindu wife shall be entitled to live
separately from her husband without forfeiting her claim to maintenance,-
(a)
if he is guilty of desertion, that
is to say, of abandoning her without reasonable cause and without her consent
or against her wish, or of willfully neglecting her;
(b) if he has treated her with such cruelty
as to cause a reasonable apprehension in her mind that it will be harmful or
injurious to live with her husband;
(c) if he is
suffering from a virulent form of leprosy;
(d) if he has
any other wife living;
(e) if he keeps a concubine in the same
house in which his wife is living or habitually resides with a concubine
elsewhere;
(f) if he has
ceased to be a Hindu by conversion to another religion;
(g) if there is
any other cause justifying her living separately.
(3)
A Hindu wife shall not be entitled
to separate residence and maintenance from her husband if she is unchaste or
ceases to be a Hindu by conversion to another religion.
In Ramabai
wife of Bhikaji Bhaskar v Trimbak Ganesh Desai, the
husband, an undivided member of a Hindu joint family, had deserted his wife.
The wife claimed maintenance for herself and her child from the husband‟s
relatives. The Bombay High Court held: “No doubt, the authorities do not show
that the relations of a deserted wife are under a personal liability to
maintain her; but they do show that she is entitled to be maintained out of her
husband’s property to the extent of one-third of the proceeds of that
property.” The High Court thus upheld the claim of the wife to receive maintenance
from her husband’s relatives, even though the latter did not have a personal
obligation to do so.
Section 19 - Maintenance of widowed
daughter-in-law
(1)
A Hindu wife, whether married
before or after the commencement of this Act, shall be entitled to be
maintained after the death of her husband by her father-in-law.
Provided
and to the extent that she is unable to maintain herself out of her own
earnings or other property or, where she has no property of her own, is unable
to obtain maintenance-
(a) from the
estate of her husband or her father or mother, or
(b) from her son
or daughter, if any, or his or her estate.
(2)
Any obligation under sub-section
(1) shall not be enforceable if the father-in-law has not the means to do so
from any coparcenary property in his possession out of which the
daughter-in-law has not obtained any share, and any such obligation shall cease
on the remarriage of the daughter-in-law.
In Raj
Kishore Mishra v. Smt. Meena Mishra, Court held that the
obligation of father-in-law shall not be enforceable if he has no means to
maintain his daughter-in-law from any coparcenaries property in his possession
out of which the daughter-in-law has not obtained any share. The object of this
Section is to make it clear that the widowed daughter-in-law can claim
maintenance from her father-in-law only where she is unable to maintain herself
out of her own property or from the estate of her husband, father, mother, son
or daughter. It is also provided that the father-in-law shall be under no
obligation to maintain his daughter-in-law except in cases where there is some
ancestral property in his possession from which the daughter-in-law has not
obtained any share.
Section 20 - Maintenance of children
and aged parents
(1)
Subject to the provisions of this
section a Hindu is bound, during his or her lifetime, to maintain his or her
legitimate or illegitimate children and his or her aged or infirm parents.
(2)
A legitimate or illegitimate child
may claim maintenance from his or her father or mother so long as the child is
a minor.
(3)
The obligation of a person to
maintain his or her aged or infirm parent or daughter who is unmarried extends
in so far as the parent or the unmarried daughter, as the case may be, is
unable to maintain himself or herself out of his or her own earnings or other
property
Explanation-
In this section "parent" includes a childless
stepmother.
Discuss In Detail Rape Under Section 375 Of Ipc
Or
Discuss The Offence Against Women Under The IPC
With Respect To The Following :
1. Dowry Death
2. Rape
3. Adultery
Or
Define Rape And Distinguish It From Adultery.
Rape.
375. Rape.-- A man is said to commit [1] "rape" if he--
(1) penetrates his penis, to any extent, into the vagina, mouth, urethera or anus of a
375. Rape.-- A man is said to commit [1] "rape" if he--
(1) penetrates his penis, to any extent, into the vagina, mouth, urethera or anus of a
woman or makes her to do so with him or any other person; or
(2) inserts, to any extent, any object or a part of the body, not being the penis, into the
(2) inserts, to any extent, any object or a part of the body, not being the penis, into the
vagina, the urethra or anus of a woman or makes her to do so with him or
any other
person; or
(3) manipulates any part of the body of a woman so as to cause penetration into the vagina,
(3) manipulates any part of the body of a woman so as to cause penetration into the vagina,
urethra, anus of a woman or makes her to do so with him or any other
person; or
(4) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with
(4) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with
him or any other person,
under the circumstances falling under any of the following seven descriptions:-
First.- Against her will.
Secondly.- Without her consent.
Thirdly.- With her consent, when her consent has been obtained by putting her or any
under the circumstances falling under any of the following seven descriptions:-
First.- Against her will.
Secondly.- Without her consent.
Thirdly.- With her consent, when her consent has been obtained by putting her or any
person in whom she is
interested in fear of death or of hurt.
Fourthly.- With her consent, when the man knows that he is not her husband, and that her
Fourthly.- With her consent, when the man knows that he is not her husband, and that her
consent is given
because she believes that he is another man to whom she is or
believes herself to be
lawfully married.
Fifthly.- With her consent, when, at the time of giving such consent, by reason of
Fifthly.- With her consent, when, at the time of giving such consent, by reason of
unsoundness of mind or
intoxication or the administration by him personally or
through another of any
stupefying or unwholesome substance, she is unable to
understand the nature
and consequences of that to which she gives consent.
Sixthly.- With or without her consent, when she is under sixteen years of age.
Seventhly.- When she is unable to communicate consent.
Explanation 1.- For the purposes of this section, "vagina" shall also include labis majora.
Explanation 2.- Consent means an unequivocal voluntary agreement when the woman by
Sixthly.- With or without her consent, when she is under sixteen years of age.
Seventhly.- When she is unable to communicate consent.
Explanation 1.- For the purposes of this section, "vagina" shall also include labis majora.
Explanation 2.- Consent means an unequivocal voluntary agreement when the woman by
words, gestures or any form of vetbal or non-verbal communication,
communicates
willingness to participate in the specific sexual act: Provided that a
woman who does not
physically resist to the act of penetration shall not by the reason only
of that fact, be
regarded as consenting to sexual activity.
Exception. 1- A medical procedure or intervention shall not constitute rape.
Exception. 2- Sexual intercourse or sexual acts by a man with his own wife, the wife not being
Exception. 1- A medical procedure or intervention shall not constitute rape.
Exception. 2- Sexual intercourse or sexual acts by a man with his own wife, the wife not being
under fifteen years of age, is not rape.
Dowry death.
304B. Dowry death.--
(1) Where the 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.
Explanation.- For the purposes of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act,1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
304B. Dowry death.--
(1) Where the 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.
Explanation.- For the purposes of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act,1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
To prohibit the
demanding, giving and taking of Dowry, the Dowry Prohibition Act, 1961 has been
in force since 1st July 1961.
The object in forming
the Dowry Prohibition Act and adding provisions in the Indian Penal Code, the
Criminal Procedure Code and the Indian Evidence Act is to remove the evil of
dowry system and give protection to women. The object of this article is to try
and explain whether the demand for dowry amounts to cruelty or not.
In landmark case, Gurbachan
Singh v. Satpal Singh, the relation between demand for
dowry and cruelty has been explained by the Supreme Court. As per the facts of
the case it was held that the victim, a newlywed woman, who had committed
suicide within a year of her marriage, was subjected to utmost cruelty (she was
also insinuated to have an illegitimate child). The accused family demanded
dowry and when she failed to bring it, they tortured her. The court, comprising
a two judge bench of said that, that the worst part of the cruelty was that she
was even taunted for carrying an illegitimate child. The Court also held that a
respectable lady cannot bear this kind of false allegation levelled against her
and this must have mentally tortured her. Thus the persistent demands of the
accused for more money, their tortures and taunts amounted to instigation and
abetment that compelled her to do away with her life.
In this case we see how the
demand for dowry is a very delicate matter. It can transform into an ugly
picture and ultimately drive a woman to her death bed.
Similarly, in the most recent
cases of
Rajesh Bhatnagar v. State
of Uttarkhand and Sharad v. State Of
Maharashtra when the brides were burnt alive
with reference to the demand of dowry and their failure in fulfilling the
demand, one can very well understand the stand of cruelty in demand for dowry.
This type of cases can give us a clear picture of how the demand for dowry can
become a cruel issue.
Adultery
Adultery (from Latin adulterium)
is extramarital sex that is
considered objectionable on social, religious, moral, or legal grounds.
A single
act of sexual intercourse is generally sufficient to constitute adultery, and a
more long-term sexual relationship is sometimes referred to as an affair. Historically, many
cultures have considered adultery to be a very serious crime. Adultery often incurred severe punishment, usually for the
woman and sometimes for the man, with penalties including capital
punishment, mutilation, or torture. In countries where
adultery is a criminal offense, punishments range from fines to caning and even capital
punishment. In Muslim countries that follow Sharia law for criminal
justice, the punishment for adultery may be stoning. There are
fifteen countries in which stoning is authorized as lawful punishment,
though in recent times it has been legally carried out only in Iran and Somalia.
Section
497 of the Indian
Penal Code deals with Adultery. As per the Indian law, a woman cannot be punished for the offence of
adultery. Only a man who has consensual sexual intercourse with the wife
of another man without his consent can be punished under this offense in India. If someone "lives in adultery", the partner can
file for divorce
Section 497 in The Indian Penal Code
497. Adultery.— Whoever
has sexual intercourse with a person who is and whom he knows or has reason to
believe to be the wife of another man, without the consent or connivance of
that man, such sexual intercourse not amounting to the offence of rape, is
guilty of the offence of adultery, and shall be punished with imprisonment of
either description for a term which may extend to five years, or with fine, or
with both. In such case the wife shall not be punishable as an abettor.
In Rajee vs Baburao the fact of the case is
that, the husband claims the charges of adultery on his wife with one of her
friend, Madras High Court held that There is
no pleading in this case that the wife had sexual intercourse with a stranger.
The allegation in the petition are only that the husband saw his wife talking
with his friend. The
finding of adultery has necessarily to be based on some sort of positive
evidence superior to suspicion.
In Emmanuel Simon Peters v. Mrs. Alice Peters 1977
Hindu L.R. 672, it was observed by the Delhi High Court that "the
particulars of the time, the date, the place of commission of acts of adultery
must be specific so that the opponent can defend the case.
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·
Discuss main
object of dowry prohibition act, 1961.
The offering of presents, gifts or
finance as dowry is a long practice prevailing in Indian society. In India, the
1986 Constitutional Amendment inserted Section 304B in Indian Penal Code (IPC)
which punishes dowry death and the 1983 Amendment inserted Section 498A of IPC
which provides punishment for cruelty by husband or his relative towards women
on demand of dowry and helps to seek redress by the aggrieved party from the cruelty
and harassment from the matrimonial home.
Section
2 in the Dowry Prohibition Act, 1961
Definition of ‘dowry'.
—In this Act, “dowry” means any property or valuable security given or agreed
to be given either directly or indirectly—
(a) by
one party to a marriage to the other party to the marriage; or
(b) by
the parent of either party to a marriage or by any other person, to either
party to the marriage or to any other person,
at or before [or any time after the
marriage as a consideration] [in connection with the
marriage of the said parties, but does not include] dower or mahr in the case
of persons to whom the Muslim Personal Law (Shariat) applies.
The Dowry prohibition Act was
enacted by the Parliament in 1961 with an objective to prohibit presenting, obtaining or
demanding dowry by any means from either of the party to the marriage.
The Act defines the term ‘dowry’ to contain whichever agreement made by the
parents or a person connected with the marriage to give any assets, belongings
or valuable security or has previously given such asset to the parent or any
person related with the marriage, at the time of marriage or at any time prior
to or subsequent to marriage as a part of such marriage. The Act excludes from
the purview of dowry the mahr or dower given during Muslim marriages or as a
part of personal law of Muslims.
Aims and Objective
·
The
Act penalizes the person for offering, acceptance or assistance made in
relation to dowry with imprisonment for five years and with fine of rupees
fifteen thousand or sum equal to that of dowry.
·
Where
a gift is given during marriage to either party to the marriage without any
claim, such gift or present shall be excluded from the description of dowry.
Moreover, the present will not constitute dowry if the gifts or presents are
given as a part of custom or usage prevailing in the society and such gift does
not exceed the financial stability of the person giving such gift.
·
A
penalty of minimum six months imprisonment extendable up to two years and ten
thousand rupees fine shall be imposed upon a person for demanding or claiming
dowry.
·
Where
a person advertises or publishes by any means any offer of property or other
valuables as a consideration or return for the marriage of his son or daughter
or any relative, he shall be punished with imprisonment and fine specified
under the Act.
·
The
Act invalidates agreements made with regard to offer or acceptance of dowry.
·
The
person, who collects dowry other than the woman on whose behalf it is given,
shall return the dowry to the woman within the time specified under the Act.
·
The
Acts confers power on the First Class Judicial Magistrate or a Metropolitan
Magistrate to take cognizance of offense. Additionally, the Court shall take
cognizance of offense on his own information, police report of the incident,
complaint by the aggrieved person or any person connected therewith, complaint
filed by any welfare association or society etc. But such association shall be
acknowledged and recognized by either Central or State Government.
·
The
Act recognizes the application of Criminal procedure Code to certain matters
specified under the Act.
·
The
burden of proof lies on the person who is alleged to have taken or demanded
dowry to prove that he has not committed such an offense.
The Act empowers the State Government to appoint
Dowry Prohibition Officers in the necessary areas to carry out the powers and
functions prescribed under the Act. The functions of the officer includes
prevention of receiving or abetting to receive dowry, collection of evidence
relating to the incident, further functions entrusted by the State Government
etc. The Act delegates the Central and State Government to formulate rules in
matters enumerated under the act after publishing in the Gazette of India. The
Central Government has framed the Dowry Prohibition (Maintenance of Lists of
Presents to the Bride and Bridegroom) Rules, 1985 to implement the power assigned
under the Act. The rule provided that the bride shall retain the record of
gifts or presents offered or presented during marriage.
The Act though fulfils its
objective, is criticized on the ground that it does not contain special
provisions for fake complaint and false swearing. It is also condemned that it
duplicates certain provisions in the Indian Penal Code and other municipal
laws. The Act lacks remedy for the violence against men at family and often
some of them are banned from travelling abroad. There are many recommendations
for amending the Act and an order from the Supreme Court to fill certain gaps
existing in the present law, but that has not yet accomplished.
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DISCUSS
THE MAIN OBJECT S OF JUVENILE JUSTICE (CARE AND PROTECTION) ACT , 2000.
The Juvenile Justice (Care
And Protection) Act , 2000 is an Act to
consolidate and amend the law relating to juvenile in conflict with law and
children in need of care and protection, by providing for proper care,
protection and treatment by catering to their development needs, and by
adopting a child friendly approach in the adjudication and disposition of
matters in the best interest of children and for their ultimate rehabilitation
and matters connected therewith or incidental thereto.
Objects or salient feature of the Act –
1. Act lays
down the basic principles for administering justice to juvenile and children.
2. Act seeks
to bring the juvenile law in conformity with the United Nations convention on
the right of the child.
3. It
aims at making the juvenile system meant for a juvenile or the child more
appreciative of their development needs in comparison to criminal justice
system as applicable to adults.
4. Act prescribed
a uniform age of eighteen years for both boys and girls to be treated as
juvenile or child.
5. The Act
makes use of more appropriate and more dignified terminology in that it refers
to a delinquent juvenile as a juvenile in conflict with law and a neglected
juvenile as a child in need of care and protection. It used the terms
adjudication, disposition and enquiry in contrast to conviction, sentencing,
trial, etc. which are used in the criminal justice system for adults.
6. The Act
makes a clear distinction between a juvenile in conflict with the law and a
child in care and protection and creates two separate and distinct systems to
deal with each. Act seeks to minimize stigma and keeps in view developmental
needs of the juvenile or child in so doing.
7. Juvenile
in conflict with law is to be dealt with by juvenile justice board and child in
need of care and protection is to be dealt with by a child welfare committee. Act
mandate that one or more juvenile justice boards and one or more child welfare
committee should compulsorily be set up for every district.
8. Act provides for setting up special juvenile
police units with a human approach through sensitization and training of police
personnel.
9. To
ensure that authorities envisaged under the Act speedily dispose of cases
regarding juvenile or child. The Act directs that cases related to juvenile or
child, should be completed within a period of four months.
10. Act also
deals with various types of child abuses and crimes against children.
11. All
offences against juvenile have been made cognizable offence.
12. Act prohibits
joint proceeding of a delinquent child with an adult person.
13. Act directs
children cannot be imprisoned or jailed or kept in police station under any
circumstances.
14. Act prohibits
publication of any photographs or material likely to identify the child.
15. Act lays
down what orders may and what orders may not be passed regarding juvenile.
16. Act provides
for removal of disqualification attaching to conviction.
Sarita Narayan Sawant v. State of
Maharashtra.
There is no theory of punishment imported
into the Act and the whole thrust is on the protection, development and
rehabilitation. Admittedly juvenile cannot be sent to prison, bail cannot be
refused and the maximum that happens is juvenile delinquent is given in case of
wither the probation officer or in the case of parent or some fit person or
institution not by way of punishment but only with a view to rehabilitate them.
They suffer no disqualification even when the offence is proved, no matter the
gravity of the offence. For all the reasons, therefore, the jurisdiction of the
courts created by the code of criminal procedure to try juvenile delinquent is
totally excluded even when the offence is punishable with death or imprisonment
for life.
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Discuss The Welfare And
Safety Of Women In The Factories Act, 1982.
The
Factories Act, 1948 is a welfare legislation enacted with an intention to
regulate working conditions in the factories and to provide health, safety and welfare
measures. Besides, the Act envisages to regulate the working hours, leave,
holidays, overtimes, employment of children, women and young person’s etc. The
Act was drastically amended in 1987 whereby safeguards against use and handling
of hazardous Substances and procedures for setting up hazardous industries were
laid down.
Special provisions relating to women
1. Latrine
and Urinal Facilities
Separate conservancy facilities are
provided to women workers in Factories Act, 1948. The Factories Act, 1948 makes
it obligatory for every factory to maintain an adequate number of latrines and
urinals of the prescribed type separately for men and women workers. Such
facilities are to be conveniently situated and accessible to workers at all
times while they are in factory. Every latrine is required to be under cover
and so partitioned off as to secure privacy and have a proper door and
fastenings. Sweepers are required to be employed to keep latrines, urinals and
washing places clean. Standard of construction and the scale of the latrine
accommodation to be provided for men and women workers are contained in the
rules framed by the concerned state government.
2. Prohibition
of work in Hazardous Occupations
The
Factories Act, 1948 prohibits employment of women in dangerous occupations.
Section 22(2) of the Factories Act, 1948 provides that no women shall be
allowed to clean, lubricate or adjust any part of a prime mover or of any
transmission machinery while the prime mover or transmission machinery is in
motion, or to clean, lubricate or adjust any part of any machine if the
cleaning, lubrication or adjustment thereof would expose the women to risk of
injury from any moving part either of that machine or of any adjacent machinery.
In an English case Pearson v. Belgium Co. Ltd., the question was whether
stationary parts of a machine can be cleaned by woman if the machine as a whole
is in motion. It was held by the Court that if the machinery as a whole is in
motion even stationary parts of the machine cannot be cleaned by woman.
But in Richard Thomas and Baldwins Ltd. v. Cummings, the Court observed
that there would be no breach of statutory duty if an injury occurs while the
machinery is unfenced, if the power is cut off and the machinery is under
repairs and the parts are not in motion but are moved by hand for purposes of
repairs.
The Factories also prohibit the
employment of women in pressing cotton where a cotton opener is at work. There
is a proviso that if the feed end of a cotton opener is in a room separated
from the delivery end by a partition to the roof or to such height as the
inspector may in any particular case specify in writing, women may be employed
on the side of the partition where the feed end is situated.
In B.N. Gamadia v. Emperor, the Bombay High Court observed that the
provisions of the Section are not complied with if there is a door made in a
partition between the two portions of the room and if it can be opened by a
woman employed although the door is shut, yet it is not locked nor other
effective means are taken to prevent its being opened by a woman. This shows
that both legislature and judiciary have shown concern about the security of
women workers and every precaution is being taken to protect them against the
risks of employment.
Again Section 87 of the Factories Act,
1948 empowers the State Government to prohibit employment of women in dangerous
operations. According to this Section where the State Government is of the
opinion that any manufacturing process or operation carried on in any factory
exposes any persons employed in it to a serious risk of bodily injury,
poisoning or disease, it may make rules applicable to any factory or class or
description of factories in which manufacturing process or operation is carried
on specifying the manufacturing process, or operation and declaring it to be
dangerous and prohibiting or restricting the employment of women in the
manufacturing process or operation.
3. Washing and Bathing Facilities
Separate facilities washing and
bathing are provided for women workers under the Factories Act. According to
Section 42 (1)(b) of the Act, separate and adequately screened washing
facilities shall be provided for the use of male and female workers. Such
facilities shall be conveniently accessible and shall be kept clean. However,
the State Government is empowered to prescribe standards of adequate and
suitable facilities for washing.
4. Crèches
A
crèche is a nursery. It is a place where babies of working mothers are taken
care of while the mothers are at work. Section 48 of the Factories Act, 1948
provides that in every factory wherein more than 30 women workers are
ordinarily employed there shall be provided and maintained a suitable room for
the use of children under the age of 6 years of such women. Such rooms shall
provide adequate accommodation, and shall be adequately lighted and ventilated.
Such rooms shall be maintained in a clean and sanitary condition and shall be
under the charge of women trained in the care of children and infants.
The State Government is authorized to
make rules:
1.
Prescribing the location and the standards in
respect of construction, accommodation, furniture and other equipment of rooms
to be provided to be used as crèches,
2.
Requiring
the provision in factories of additional factories for the care of children
belonging to women workers, including suitable provision of facilities for
washing and changing their clothing.
3.
Requiring
the provision in any factory of free milk or refreshment or both for such
children.
4.
Requiring
that facilities shall be given in any factory of free milk or refreshment or
both for such children.
5.
Requiring
that facilities shall be given in any factory for the mothers of such children
to feed them at the necessary intervals.
The State Governments have
been given wide powers to make rules for the benefit and welfare of children of
working mothers and to provide facilities to mothers in this regard.
5. Hours
of Work
Under the Factories Act, 1948, the
daily hours of work of adult workers have been fixed at 9.Though the Act
permits men under certain circumstances to work for more than 9 hours on any
day it does not permit women to work beyond this limit. Also in case of women
workers there shall be no change of shifts except after a weekly holiday or any
other holiday.
The
maximum permissible hours of work for men and women are 48 per week in
factories. The daily spread over of working hours has been limited to 10½ hours
in factories. The Act provides that no adult worker whether man or woman
employed in factories shall be allowed to work for more than 5 hours at a
stretch without a rest pause of at least half an hour.
6. Maximum
Permissible Load
To safeguard women against the dangers
arising out of lifting to heavy weight, the Factories Act authorise the
appropriate Governments to fix the maximum load that may be lifted by women.
Rules framed by all the State Governments (Except U.P.) have fixed the
following maximum weights for women employed in factories.
Adult
females : 65 lbs
Adolescent
females : 55 lbs
Female
children : 30 lbs
7. Prohibition
of Night work
The Factories Act, 1948 prohibit the
employment of women during night hours. It is under special circumstances and
in certain industries that this restriction may be relaxed. According to
Section 66(1)(b) of the Factories Act 1948, no woman shall be required or
allowed to work in any factory between the hours of 6 a.m. and 7 p.m. However,
the State Government may by notification in the official gazette, in respect of
any factory or group or class or description of factories, vary the limits
pertaining to night duties but no such variation shall authorise the employment
of any woman between the hours of 10 p.m. and 5 p.m. Section 66(2) further
empowers the State Government to make rules providing for exemption from the
restriction set out in Sub-Section (1) of the Section 66 concerning restrictions
on employment of women to such an extent and Subject to such conditions as it
may prescribe of women working in fish curing or fish canning factories, where
the employment of women beyond the hours specified in the said restrictions is
necessary to prevent damage to or deterioration in any raw material. However,
such rules made by the Government shall remain in force for not more than three
years at a time.
In Triveni K.S. and Others v. Union of India and others, the
Constitutionality of Section 66 (1) (b) was challenged being discriminatory on
the basis of sex. The High Court held that women should not be employed during
night for their own safety and welfare was a philosophy of a bygone age out of
tune with modern claims of equality, especially between sexes. With regard to
exception given to fish currying and canning industry, it was observed that it
looked an absurd argument that women would be safe in such industries but not
safe in the textile industry. Consequently Section 66(1)(b) of the Act was struck
down an unconstitutional by the High Court and declared that the same safeguard
as provided women in fish industry should be given to women workers in others
industries during night time.
8. General
Provisions
1. To
provide health measures
The occupier of factory is
obliged to undertake following measures for ensuring good health and physical
fitness of workers whether male or female:
a. Cleanliness
and disposal of wastes and effluents
The occupier is required
to keep the factory premises clean and free from waste and effluvia he shall
make arrangements for sweeping and removing dirt and refuse daily, cleaning
with disinfectant, effective treatment and disposal of wastes and effluents and
maintaining proper drainage.
b. Ventilation,
temperature and humidity
The factory premises
should be adequately ventilated by circulation of fresh air and comfortable
temperature should be maintained in every workroom. Besides, artificially
increased humidity should be controlled by use of purified water.
c. Prevent
dust and fumes
Accumulation and inhalation of dust and fumes
or other impurity of such a nature is likely to be injurious to health of
workers should be prevented by use of exhaust fans and other safeguards.
d. Avoid overcrowding
The workplace should not
be overcrowded by workers and minimum space of 14.2 cubic meters per worker in
a new factory and 9.9 cubic meters per workers in an existing factory should be
provided.
e. Lighting
and drinking water
Sufficient and suitable
natural and artificial lights, wholesome drinking water at suitable points and
during hot season, cool water in factories employing 250 or more workers,
should also be provided.
2. To
undertake safety measures
Every
factory must take appropriate safety measures as provided under the Act.
a.
Fencing
of all dangerous and moving parts of the machinery while in motion or use;
providing sufficient space for workers to operate self-acting machines,
encasing and guarding of all machinery installed in the factory and every set
of screw, bolt, spindle, wheel or pinion so as to prevent danger, taking
necessary steps to ensure that the maximum safe working peripheral speed of
every revolving machine, etc. and the maximum safe working pressure of any
pressure plant or machinery, is not accepted.
b.
Providing
suitable striking gear or other such device for the movement of driving belts
of any transmission machinery and proper locking of device which can shift
inadvertently from “off” to “on” position. All hoists, lifts and other lifting
devices for raising or lowering persons or goods shall be of good construction,
sound material, adequate strength and free from all defects. The safe working
load of each device shall be clearly marked thereon and never exceeded.
c.
Keeping
floors, stairs, steps, etc. free from obstructions and slippery Substances and
provided with Substantial handrails, wherever necessary; providing safe means
of access to every place of work, fencing all places from where persons are
likely to fall and covering of all dangerous pits, sumps, openings in floors,
etc.
d.
Taking
necessary precautions and providing screens or goggles for production of eyes,
precautions to prevent exposure to dangerous fumes, gases or dust, and measures
to prevent accumulation of explosive or inflammable dust, fumes, gases or
vapours.
e.
Providing
safe means of escape in case of fire, necessary fire, fighting equipments and
training workers about use of such equipments.
3. Welfare
Amenities
Every
factory provides adequate and suitable facilities for:
a.
Sitting
arrangements for employees who are required to work in standing position in
order that they may take short rests in the course of their work.
b.
First
aid boxes or cupboards equipped with the prescribed contents (atleast one box
for every 150 workers) shall be provided.
c.
Ambulance
rooms (when 500 or more workers are ordinarily employed in the factory). The
ambulance room shall be of the prescribed size, having equipments, medical and
nursing staff as prescribed, which shall be made readily available during all
working hours.
d.
A
canteen (when ordinarily 250 or more workers are employed in the factory).
There are a lot of cases
which dealt with the issue, namely, whether the workers employed by the
contractor in canteen may be treated as employees of the principal employer?
1.
In
Saraspur Mills Co. Ltd. v. Ramanlal
Chimanlal, the Supreme Court held that workers employed in a canteen even
if run by a cooperative society were ‘workers’ as the occupier of the factory
is under a mandatory obligation to maintain and run a canteen under Section 46
of the Factories Act, 1948.
2.
Again
in All India Railway Institute of
Employees Association v. Union of India,.The Supreme Court dealt with same
question. The Court held that the employees in the Railway Institute or Clubs
were not employees of the Railway Establishment.
3.
In
Barat Fritz Werner Limited v. State of
Karnataka, the Supreme Court ruled that the workers working in canteens
even if employed through the contractor have to be treated as “workers” and no
restricted meaning can be given even where the Factories Act, 1948 is not
applicable to an establishment but canteen facility is provided as a condition
of service.
4. Annual
leave with wages
A
workers who works for 240 days is allowed an annual leave with wages at the
rate of one day for every 20 days of work. Annual leave can be accumulated up
to 30 days for adults and 40 days for children.The annual leave pay is to be
paid at the rate average to the daily wage immediately preceding the leave.
This will include basic and other allowances except boxes and overtime.
It is now
clear that there are various provision in Factories Act which provide health
safety and welfare for women workers. Unfortunately, all of these provisions
are applicable to the organised sector which employ barley 10 percent of the
total female labour force. So there is urgent need to extent these provisions
to unorganised sector where majority of women work.
In factories Act the
hours of work for men and women working in perennial factories are the same at
present. It is, therefore, necessary to reduce the hours of work from 9 to 6
for women because they have to work both inside their homes as well as outside.
A woman worker is both a domestic drudge as well as wage earner. It is in the
interest of working women and her family to set special limit to her hours of work.-------------------------------------------------------------------------------------------------------------------------------------
Distinction /
Difference between Adultery and Rape (short note)
No
|
Adultery
|
Rape
|
1
|
Adultery is an offence defined in Section 497 under
chapter 20 of the Indian Penal Code, dealing with the
offences marriage
|
Rape is an offence defined under Section 375 and custodial
rape under Section 376B to 376D. It is defined in chapter 16 of
the Indian Penal Code relating to offences Affecting the human
body.
|
2
|
Definition :
Whoever has sexual intercourse with a person who is and
whom he knows or has reason to believe to be the wife of another man, without
the consent or connivance of that man, such sexual intercourse not amounting
to the offence of rape, is guilty of the offence of adultery, and shall be
punished with imprisonment of either description for a term which may extend
to five years, or with fine, or with both. In such case the wife shall not be
punishable as an abettor (Section 497).
|
Definition :
A man is said to commit “rape” who, except in the case
hereinafter excepted, has sexual intercourse with a women under circumstances
falling under any of the six following description :
First - Against her will.
Secondly - Without her consent.
Thirdly - With her consent, when her
consent has been obtained by putting her or any person in whom she is
interested in fear of death or of hurt.
Fourthly - With her consent, when the
man knows that he is not her husband, and that her consent is given because she
believes that he is another man to whom she is or believes herself to be
lawfully married.
Fifthly - With her consent, when, at
the time of giving such consent, by reason of unsoundness of mind or
intoxication or the administration by him personally or through another of
any stupefying or unwholesome substance, she is unable to understand the
nature and consequences of that to which she gives consent.
Sixthly - With or without her
consent, when she is under sixteen years of age. (Section 375)
|
3
|
Offence against whom?
Adultery is an offence against the husband.
|
Offence against whom?
Rape is an offence against the women herself irrespective
of married or unmarried.
|
4
|
Consent:
In the case of Adultery the consent of the woman is
immaterial. In fact, the woman is always a willing and consenting party to
sexual intercourse.
|
Consent:
Consent is a defence to rape. In the case of rape of the
offence is committed against the will and without the consent of the
women. However, if the girl is under sixteen years of age the
offence can be committed even with her consent.
|
5
|
Aggrieved Party: The
husband is the aggrieved party.
|
Aggrieved Party :
Women herself
|
6.
|
A man cannot commit adultery with his own wife.
|
Rape can be committed with his own wife, if she is below
15 years of age.
|
7.
|
Adultery is an offence against marriage.
|
Rape is an offence against sex.
|
8
|
In Adultery, the woman cannot file a complaint, it is an
offence against the husband of the wife, with whom the accused had sexual
intercourse.
|
In Rape, victim can file a complaint.
|
6
|
Adultery may be committed only when the woman is married
and she is the wife of someone.
|
Rape can be committed on any women married or unmarried.
|
7
|
Adultery cannot be commit with
1) an unmarried woman,
2) a widow
3) a married woman when her husband consents to or
connives at it, or
4) a divorced women
|
Rape cannot committed when the women has consented for the
sexual intercourse except when the women is under 16 years of age.
|
8
|
Punishment :
Adultery is less serious offence and punishment may
extend up to five years imprisonment or fine or both.
|
Punishment :
Rape is more serious offence and punishment may
extend upto life imprisonment or ten years which may be reduced adequate or
special reasons.
|
Discuss In Detail The
Divorce Of Women Under Muslim Law.
As per the definition of Talaq propounded in Moonshee Buzloor Rahim vs. Lateefutoon Nissa, Talaq is a mere arbitrary act of a muslim husband, by which he may repudiate his wife at his own pleasure with or without cause. Thus, a muslim wife does not have any right to give Talaq to her husband. However, there are ways through which a muslim wife can repudiate her marriage and get a divorce from her husband. These are as follows -
1. Talaq e tafweez –
A husband may delegate his power to give Talaq to any third
party or even to his wife. This delegation is called tafweez. An agreement made
either before or after the marriage providing that the wife is at liberty to
divorce herself from her husband under certain specified conditions (e.g.
husband taking a second wife), is valid, provided that such power is not
absolute and unconditional and that the conditions are reasonable and are not opposed
to public policy.
In Mohd Khan vs MstShahmali AIR 1972, there was a
pre-nuptial agreement in which the defendant agreed to live in plaintiff's
parental house after marriage and if he left the house, he would pay a certain
sum to the plaintiff, the default of which the condition would act as divorce.
It was held that the condition was not unconscionable or opposed to public
policy.
Note : that a wife does not divorce her husband but gets herself divorced from the husband.
Note : that a wife does not divorce her husband but gets herself divorced from the husband.
This does not deprive the husband from his right to give Talaq.
Talaq e taliq - It means contingent divorce. Under the Hanafi law, pronouncement of divorce may take effect immediately or at some future time or event.
Talaq e taliq - It means contingent divorce. Under the Hanafi law, pronouncement of divorce may take effect immediately or at some future time or event.
2. Khula –
Divorce at the request
of wife - A wife has a right to buy her release from marriage from her husband.
It must satisfy the following conditions -
1.
there must be an offer
from the wife.
2.
the offer must be
accepted with consideration (evaz) for the release.
3.
the offer must be
accepted by the husband.
It becomes effective
as well as irrevocable (Talaqulbain) as soon as it is accepted by the husband
and the wife is bound to observe iddat.
As a consideration for
release by the husband, everything that can be given in dower can be given. If
the wife fails to give the consideration that was agreed upon at the time of
Khula, divorce does not become invalid but the husband has the right to claim
the consideration.
In MoonsheeBuzloor
Rahim vsLateefutoonNissa, Khula was defined as a divorce by consent in
which the wife gives or agrees to give a consideration to the husband for her
release from the marriage tie. Khula is thus the right of divorce purchased by
the wife from her husband.
3. Mubarat –
Divorce by mutual
agreement - It is a form of dissolution of marriage contract, where husband and
wife both are averse to the marriage and want to separate. It requires
following conditions -
1.
Either of husband or
wife can make the offer.
2.
The other one must
accept it.
3.
As soon as it is
accepted, it become irrevocable and iddat is necessary. Since it is a
mutual agreement, there is no
question of consideration.
4. Lian –
False charge of
adultery - When the husband charges the wife with adultery and the charge is
false, the wife is entitled to sue for and obtain divorce. InZafarHussainvsUmmaturRahman
1919,the Allahabad HC accepted the doctrine of Lian. The following
conditions must be satisfied -
1.
Husband, who is adult
and sane, charges his wife with adultery or denies the
paternity of her child.
2.
Such charge is false.
3.
The marriage is a
Sahih marriage.
Features of Lian -
1.
Such false charge does
not dissolve the marriage automatically but only gives a right
to the wife to sue for divorce. The
marriage continues till the decree is passed.
2.
Wife must file a
regular suit and just an application will not suffice.
3.
Judicial separation
due to Lian is irrevocable.
4.
Lian is applicable
only to Sahih marriage and not to Fasid ones.
Retraction -
A husband may retract the charge. However, the retraction must be bona fide and
unconditional. It must be made before the closing of evidence.
5. Fask –
Cancellation - Muslim
law allows a lady to approach a qazi for dissolving the marriage under the
following conditions -
1.
if the marriage is
irregular.
2.
if the person having
an option to avoid a marriage has exercised his options.
3.
if the marriage was
within prohibited degrees or fosterage.
4.
if the marriage has
been contracted by non-Muslims and the parties have adopted
Islam.
Before the enactment
of Muslim Marriage Dissolution act, this was the only way for a muslim woman to
repudiate a marriage.
6. Zihar –
Injurious Assimilation
- If a husband compares the wife with his mother or any other female relative
within prohibited degree, the wife has a right to refuse herself to him until
he has perfomed a penance such as freeing a slave or fasting for a month. In
default of expiation by penance, the wife has the right to apply for judicial
divorce. Ingredients -
1.
husband must be sane
and adult
2.
husband compares wife
to his mother or any other female relative within prohibited
degrees.
3.
then the wife has a
right - a) to refuse to have sexual intercourse with him till he has
expiated
himself by penance, b) to apply in court for an order directing him for a
penance
or to decree her a regular divorce.
Legal Effects-
Zihar by itself does
not terminate the marriage nor does it cause the wife to lose her right to
maintenance even in case of default of penance.
It causes the
following -
1.
sexual intercourse
becomes unlawful
2.
husband is liable for
penance
3.
wife can claim
judicial separation if the husband persists in wrong doing.
The comparison must be
done intentionally and with disrespect. If the husband makes a comparison
to show respect to his wife, an expiation is not necessary.
This form has become obsolete.
This form has become obsolete.
-----------------------------------------------------------------------------------------------------------------
Explain the main provisions of “The prenatal
diagnostic technique (Regulation and Prevention of Misuse) act 1994.
The prenatal diagnostic technique (Regulation
and Prevention of Misuse) act 1994 came into existence w.e.f 01.01.1996 which
was amended in the year 2002 due to several drawbacks, the act has been renamed
as “The Pre-Concept and Pre-Natal Diagnostic Techniques (Prohibition of Sex
Selection) act, 2002”
The Maharashtra Regulation of use of The
prenatal diagnostic technique (Regulation and Prevention of Misuse) act 1994 is
the first legislation in the country to regulate pre-natal diagnostic procedure
and techniques. The central law has come into force from 1st of
January 1996. The act does not aim to ban the use of pre-natal diagnostic techniques.
It aims to regulate the use of pre-natal diagnostic techniques for determining
the sex of the foetus and at the same time, permitting a regulated use of such
techniques for the purpose of detection of specific genetic abnormalities. It
is called “The prenatal diagnostic technique (Regulation and Prevention of
Misuse) act 1994”
Main
object of the act –
The main purpose of enacting the act is to ban
the use of sex selection techniques after conception and prevent the misuse of
prenatal diagnostic technique for sex selective abortion.
Salient
features
Offences under
this act include conducting or helping in the conduct of prenatal diagnostic
technique in the unregistered units, sex selection on a man or woman,
conducting PND test for any purpose other than the one mentioned in the act,
sale, distribution, supply, renting etc. of any ultra sound machine or any
other equipment capable of detecting sex of the foetus.
Main provisions in the act are –
1.
The Act provides for the prohibition
of sex selection, before or after conception.
2.
It regulates the use of pre-natal
diagnostic techniques, like ultrasound and amniocentesis by
allowing them their use only to detect :
4. certain
congenital malformations
6. sex
linked disorders.
3.
No laboratory or
centre or clinic will
conduct any test including ultrasonography for
the purpose of determining the sex of the foetus.
4.
No person, including the one who is
conducting the procedure as per the law, will communicate the sex of the foetus to
the pregnant woman or her relatives by words, signs or any other method.
5.
Any person who puts an advertisement
for pre-natal and pre-conception sex determination facilities in the form of
a notice, circular,
label, wrapper or any document, or advertises through interior or other media
in electronic or print form or engages in any visible representation made by
means of hoarding, wall painting,
signal, light, sound, smoke or gas, can be
imprisoned for up to three years and fined Rs. 10,000.
Compulsory registration
The
Act mandates compulsory registration of all diagnostic laboratories, all
genetic counselling centres, genetic laboratories, genetic clinics and
ultrasound clinics.
-------------------------------------------------------------------------------------------------------------------------
National Commission for
women (SHORT NOTES)
Term of office and
conditions of service of Chairperson and Members –
1. The Chairperson and every Member shall
hold office for period not exceeding three years as may be specified by the Central
Government on this behalf.
2. The Chairperson or a Member (other
than the Member Secretary who is a Member of a civil service in the union of all-India
service or holds a civil post under the union) may, by writing and addressed to
the Central Government, resign from office of Chairperson or, as the case may
be, of the Member at any time.
3. The Central Government shall remove a
person from the office of Chairperson or a Member referred sub section (2) if
that person –
a.
Becomes
an undischarged insolvent;
b.
Gets
convicted and sentenced to imprisonment for an offence which in the opinion of
the Central Government involves moral turpitude;
c.
Becomes
of unsound mind and stands so declared by a competent court;
d.
Refuses
to act or becomes incapable of acting;
e.
Without
obtaining a leave of absence from the Commission, absent from three consecutive
meetings of the Commission; or
f.
In
the opinion of the Central Government, has so abused the position of Chairperson or Member as to render that person’s
continuance in office detrimental to the public interest, provided that no
person shall be removed under this clause until that person has been given a
reasonable opportunity of being heard in matter.
4. A vacancy caused under sub-section (2)
or otherwise shall be filled by fresh nomination.
5. The salaries and allowances payable
to, and the other terms and conditions of service of, the Chairperson and Members
shall be such as may be prescribed.
-------------------------------------------------------------------------------------------------------------------------------
Functions
of Family Court. (Short Notes)
The matters which are dealt in the Family Court
in India are matrimonial relief which includes nullity of marriage, judicial
separation, divorce, restitution of conjugal rights, declaration as to the
validity of marriage and matrimonial status of the person, property of the
spouses or any of them and declaration as to the legitimacy of any person,
guardianship of a person or custody of any minor, maintenance including the
proceeding under the Cr. P.C.
The Functions of Family Court are as
follows –
1.
If any dispute to a marriage between the
parties arises irrespective of their caste or creed and validity of a marriage
the family court has got jurisdiction.
2.
The property dispute between the parties to a
marriage the family court can entertain the petition.
3.
The family court entertain suit for partition
of the property between parties to a marriage.
4.
A suit filed by wife for return of gold
ornaments, cash etc., given at the time of marriage even after death of husband
being one arising out of marital relationship though not between parties to
marriage.
5.
The family court can also pass orders or injunctions
in circumstances arising out of a marital relationship.
6.
The family court has got jurisdiction to
declare of any person as to the legitimacy.
7.
A declaratory suit regarding legitimacy of a
person would fall within the jurisdiction of Family Court.
8.
The family court has also entertains the
application for granting maintenance under the Hindu Adoptions and Maintenance
Act, 1956.
9.
The family court has jurisdiction to give the
custody of the child to a proper person and also to appoint a proper person as guardian
to the minor children.
10. The
family court has power to entertain the application under the Guardian and
Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956.
11. In
addition to that, the family court shall have jurisdiction exercisable by a
First Class Magistrate under Chapter IX of the Criminal Procedure Code i.e.,
relating to order for maintenance of wife, children or parents, has also been
conferred on the family courts. There is also an enabling provision that the
family courts may exercise such other jurisdiction as may be conferred on them
by any other enactment. In this connection the family court exercises its power
to grant maintenance under Sec.125 of Criminal procedure Code.
-------------------------------------------------------------------------------------------------------------------------
·
medical
termination of pregnancy act, 1971.
· Objects
of medical termination of pregnancy act, 1971.
The Medical
Termination of Pregnancy Act, 1971 (hereinafter referred to as “the Act”) came
into effect on 1st April, 1972. The objective of the Act is to terminate
certain pregnancies by registered medical practitioners. This Act liberalizes
the law related to abortion. Before this Act, Section 312 of the Indian Penal
Code prevailed which was in accordance with the British Law. The provision provides
induced abortion as illegal unless the abortion was done to save the women in
good faith. Although the British law had changed the law in 1967 in Great
Britain, India was still carrying it due to which the toll of women’s death
increased. The Government of India called a meeting in 1964 with Central
Family Planning Board whereby The Abortion Study Committee was formed to survey
the then penal provisions. The committee was led by Health Minister of State of
Maharashtra Mr. Shantilal Shah. It took two years to submit the report and
finally in December 1964, the report was submitted. The report suggested
changing the law of Abortion which at that time was too restrictive and
therefore the Medical Termination of Pregnancy Act, 1971 came into force. The
Act was amended twice, i.e., 1975 and 2002. It consists of eight sections. It
is applicable to all parts of India except the state of Jammu and Kashmir.
Objects
of the Act:-
Registered
medical practitioner, as per the act, has to fulfill certain criteria.-
·
First, the medical practitioners must have a medical
qualification recognized under Section 2(h) of Indian Medical Council Act,
1956.
·
Secondly, his name has been enrolled in the State Medical
Rights.
·
Thirdly, he must have experience of gynecology or obstetrics.
Therefore, the registered medical
practitioner must fulfill the above conditions.
When
pregnancy may be terminated –
·
On medical grounds, like when the physical or mental health of
the mother is at risk.
·
On humanitarian grounds, like when there is a forced pregnancy
because of rape.
·
When there is a possibility of the birth of a deformed child.
·
The pregnancy is terminated within twelve weeks on the opinion
of one registered medical practitioner.
·
However, if the pregnancy crossed twelve weeks and not twenty
weeks, in that case, the opinion of two medical practitioners is
important. The reasons behind the termination are that if there is a
possibility that the woman carrying the child is under risk of her life or she
may suffer from a serious physical or mental injury or a substantial risk that
the child born out of it will be physically or mentally handicapped.
·
An explanation is also attached with Section 3 which provides
that if the rape victim is conceiving a child, in that case, the registered
medical practitioner can terminate the child to reduce the anguish of that rape
victim with which she must be suffering from.
·
Secondly, in cases of unwanted pregnancy where the women may
suffer from the anguish of unplanned pregnancy. Therefore, in these cases the
registered medical practitioner either with his own opinion or where there is
requirement for two practitioners to give their opinion will terminate the
pregnancy.
·
In cases where a minor is pregnant, the pregnancy can be
terminated only with the approval of their legal guardians, however, her
opinion will be asked. Also in case of lunatics, the approval will be given by
their legal guardians only.
Termination
of pregnancy in good faith –
·
The continuance of the pregnancy would involve a risk to the
life of the pregnant women of of grave injury to her physical or mental health.
·
There is a substantial risk that if the child is born it would
suffer from such physical or mental abnormalities as to be seriously
handicapped
Place
where pregnancy may be terminated –
Section
4 deals with the place of termination.
·
It provides that the place of termination will be in a hospital
maintained by the Government or at any other place sanctioned by the Government.
·
If the registered medical practitioner is of the view that an
immediate action is needed to save the life of women, in that case, the place
will become irrelevant and he will terminate immediately. The termination of
pregnancy can be done only and only by the registered medical practitioner.
·
If any practitioner who is not registered terminated the child,
it will be an offence punishable under Indian Penal Code as per Section 5 of
the Act.
Immunity has been provided to the
registered medical practitioners that if any action taken in good faith and for
the purpose of fulfilling the objective mentioned in this Act, in that case, he
will be immune from the consequence of any harm caused during the
process. Therefore, the law of abortion got liberalized after the
enactment of this act which also helped to spread the awareness of reducing the
population which is increasing at a rapid speed.
--------------------------------------------------------------------------------------------------------------------------------------------
LAW AREA NAME : WOMAN
SECTION NAME : CRIMINAL LAWS
BIGAMY
LAW IN BRIEF… ………………………… ………
Second marriage during the subsistence of the first marriage is illegal in India and the
relationship arising from the same does not have any validity. One of the conditions for a
valid marriage under Section 5 of the Hindu Marriage Act, 1955 is that neither of the
party should have a spouse living at the time of the marriage. Under Section 11 of the Act,
second marriages can be declared null and void.
LAW IN DETAIL………………………….……………….……… …………… ……
Bigamy becomes an offence only if the husband or wife is alive. It is an offence even if it
is performed with the consent of the first wife.
It will not apply,
• if the husband or wife of the first marriage is dead or
• if the first marriage has been dissolved by a decree of divorce or
• the former marriage is void or declared void by a decree of nullity
Section 494 of the Indian Penal Code exempts from punishment a second marriage
contracted seven years after the absence of the spouse.
In Sarla Mudgal v. Union of India (1995 air 1531 SC), the Supreme Court held that,
• If a man after renouncing Hindu religion has adopted Muslim religion and he
without taking divorce from his wife has married again, then this marriage is not
legal.
• He will be punished for committing bigamy under section 494 IPC
Bigamy is a non-cognizable offence, bailable and compoundable with the permission of
the court. It is punishable with imprisonment up to 7 years or fine or both. For the offence
of committing bigamy by concealing the fact of the first marriage is punishable with 10
years imprisonment or fine or both. However, this offence committed under section 495
is not compoundable.
As for the second wife, though she is not entitled to any kind of right or share in the
husband’s property, she can also claim interim maintenance from her husband. In
Laxmibai v. Ayodhaya Prasad, it was held that ‘wife’ and ‘husband’ used in Section 24
of the Hindu Marriage Act are not be given strict literal meaning. The expression should
mean a person claiming to be wife or a husband.
In Rajesh Bai v. Shantabai, it was held that a woman whose marriage is void because of
the existence of another wife is entitled to maintenance under section 25 of the Act.
Interim maintenance under Section 20 is also allowed.
The children from the second wife are entitled to share in their father’s self –acquired
property.
PROCESS FOR SOLUTION……………………………….………… ………………
Complaint Under which Section ? …………………………… … ……………
Only the person aggrieved can complain in case of bigamy. If the aggrieved is the wife,
then her father can complain under section 494/495 of the Indian Penal Code.
A petition for declaration that the second marriage is void can be filed only by the parties
to the marriage and not by the first wife.
A complaint can also be filed for cheating under section 415 IPC for fraudulently
deceiving the person by keeping the subsistence of the first marriage a secret.
Whom to complain / where to complaint? ……………….. ……………………
The wife can file a complaint either in the court or in the Police station.
How to file the Case ? ………………………… ………………... ………… ……
The Supreme Court has laid down that proof of solemnization of second marriage in
accordance with the essential religious rites applicable to parties is absolutely essential
and a must for conviction for bigamy. Mere admission by the accused is not enough.
What Next ? …………………………..………………………... …… ………………
Appeal lies to the next higher court in the hierarchy.
ALTERNATE REMEDIES………………………………………..………………… …
If the offence is committed under section 494, it can be compounded with the permission
of the court.
--------------------------------------------------------------------------------------------------------------------------------------------
Prohibition
of child labour (Short Note)
The legislature
strongly desired prohibition of child labour and the Child Labour (Prohibition
and Regulation) Act, 1986 is in itself, ex facie, a bold
step towards that goal. As its preamble indicates that it has twin
objective: it intended to prohibit the engagement of children in certain
employments and to regulate the conditions of work of children in certain other
employments where children are allowed to work.
The Act makes it clear
that the rights of the child are inalienable and indivisible. Further any
person who engages into the child labour practice shall be criminally liable
under the Act of 1986 as well as his civil liability to pay compensation arises
out of violation of the fundamental rights.
Prohibition of children in certain
occupations and processes (Section 3)
Section
3 of the Act provides for certain employments in which there is a prohibition
on employment of children. It states that, “No child shall be employed or
permitted to work in any of the occupations set forth in Part A of the Schedule
or in any workshop wherein any of the processes set forth in Part B of the
Schedule is carried on.”
- Occupation set forth in Part A (18
entries) (transport, construction, Railways, Ports, Crackers and firework
industries, slaughter houses, automobile workshops & garages
explosives, handloom, mines, plastic units. Diving was added in 2008
Amendment and circus and caring for elephants in the 2010 Amendment.
- Processes set forth in part B (65
entries) Bidi making, Carpet weaving, mica cutting, lead factory, oil
expelling, Brick kilns, manufacturing of glass, zari, electroplating etc.
In 2008 Amendment a further eight processes were added to the list,
example, processes involving exposure to excessive heat (like working near
furnaces) and cold, food processing and beverage industry, etc.
- Exemption clause: The
Second Para of Sec. 3 provides exemption of occupation & workshop
engaging the child if on two grounds namely:-
- To workshop where in any of the processes set forth in
Part B is carried out by the occupier with the aid of his family.
- To any school established by or receiving assistance or
recognition from the government.
In
the landmark case of M. C. Mehta v. State of Tamil Nadu, the Supreme Court observed that despite the
constitutional mandates, the stark reality in our country, children are an
exploited lot, especially as labour. Sivakasi was one of the worst offenders in
terms of employing children in contradiction to the Child Labour (Prohibition
and Regulation) Act. Mr. M. C. Mehta invoked the power of the Supreme Court
under Art. 32, against the violation of the fundamental rights of children as
provided under Art. 24 of the Constitution. It was noted that as on 31st December
1985, there were 221 registered match factories employing 27,338 workmen of
whom 2941 were children. The Court also noted that the manufacture of matches
and fireworks is a hazardous industry, giving rise to fatal accidents. So,
keeping in view, the provisions of Art. 39 (f) and 45 of the Constitution, it
gave certain directions as to how the quality of life of children employed in
the factories could be improved. The court also constituted a committee to
oversee the directions given.
The
Apex Court examined the magnitude of the problem, considered constitutional
mandates, international commitments and statutory provisions. The Court also
considered the working of the provisions of the Child Labour (Prohibition and
Regulation) Act, 1986. It held that there are a number of loopholes in the Act,
one of them is that, children can continue to work if they are a part of a
family of labourers. Also, the Act does not use the word ‘hazardous’ anywhere,
the implication of which is that children may continue to work in those
processes not involving chemicals. It is impractical and unrealistic to draw a
distinction between hazardous and non-hazardous processes in a particular
industry. What is required is to list the whole industry as banned for child
labour, which would make the task of enforcement simpler and strategies of
evasion more difficult.
The
Supreme Court has taken certain pragmatic steps towards effective
implementation of the policy. They are:
- Survey for identification of
working children.
- Withdrawal of children working in
hazardous industries and ensuring their education in appropriate
institutions.
- The offending employer must be asked to pay
compensation of Rs. 20,000/- for every child employed in
contravention of the provisions of the Act. The liability of the employer
would not cease even if he would disengage the child employed.
- The sum so collected should be deposited in a fund to
be known as Child Labour Rehabilitation-cum-Welfare Fund. The
Fund shall form a corpus whose income shall be used only for the
education, health, safety and welfare of the concerned child. To generate
greater income, the fund can be deposited in a high yielding scheme of any
nationalized bank or other public body.
- As the aforesaid income would not be enough to dissuade
the parent/guardian to seek employment of the child, the State owes a duty
to discharge its obligation. It should provide a job to an adult
member of the family, whose child was employed in a hazardous
industry.
- In cases where it would not be possible to provide a
job, the Government would, as its contribution grant, deposit in the Child
Labour Rehabilitation-cum-Welfare Fund a sum of Rs. 5000/- for each child
employed in a factory or mine or in any other hazardous employment.
- In either of the cases whether a job is provided to an
adult member of the child’s family in lieu of the child or not, the
child shall not be required to work.
- In cases where alternative employment could not be made
available as aforesaid, the parent/guardian of the concerned child would
be paid the income, which would be earned on the corpus of Rs. 25,000/-
for each child, every month. The employment given or payment made would
cease to be operative if the child would not be sent by the
parent/guardian for education.
- The National Child Labour Policy announced
by the Government of India has already identified some industries for
priority action.
- A district could be the unit of collection so that the
executive head of the district keeps a watchful eye on the work of
the Inspectors.
- With regard to non-hazardous jobs, the
Inspectors shall have to see that the working hours of
the children are not more than four to six hours a day and that they receive
education at least for two hours each day. It would also be seen
that the entire cost of education is borne by the employer.
DISCUSS FULLY THE
PROVISIONS OF MATERNITY BENEFIT ACT, 1961.
Important Provisions of Maternity
Benefit Act, 1961 in Short
Women at the
reproductive stage are exposed to special risks during pregnancy and child
bearing, and mortality and maternal morbidity are factors which require special
consideration. The Maternity benefit Act was passed to regulate the
employment of women for certain period before and after the child birth and to
provide certain maternity and other benefits.
Definitions
"wages"
Means all remuneration
paid or payable in cash to a woman, if the terms of the contract of employment,
express or implied, were fulfilled and includes -
(1) such cash allowances
(including dearness allowance and house rent allowance) as a woman is for the
time being entitled to;
(2) incentive bonus; and
(3) the money value of
the confessional supply of food grains and other articles, but does not include
-
(I) any bonus other than
incentive bonus;
(ii) over -time earnings
an any deduction or payment made on account of fines;
(iii) any contribution
paid or payable by the employer to any pension fund or provident fund or for
the benefit of the woman under any law for the time being in force; and
(iv) any gratuity
payable on the termination of service;
"woman"
Means a woman employed,
whether directly or through any agency, for wages in any establishment.
Applicability
of Act
·
This Act is applicable
to all establishments and factories in which 10 or more persons are/were
employed in the preceding 12 months.
·
This Act is applicable
to every establishment involved in equestrian, aerobatics and other
performances, irrespective of the number of employees
·
This Act is not applicable
to those establishments/factories were Employees State Insurance Act, 1948 is
applicable.
Main
Provisions of the Act
Prohibition of
employment of Women during certain periods
No employer shall:
·
Knowingly employ women
during six weeks immediately following the date of pregnancy/ miscarriage/
medical termination of pregnancy.
·
Employ a woman in a work
of arduous (hard/tough) nature and which may interfere with the pregnancy or
normal development of fetus for a period of One month before pregnancy.
Maternity
Benefits
The maternity benefits
under this act are as follows :
Eligibility - A woman is eligible for maternity benefits when she has worked for
atleast 80 days in the preceding 12 months from her date of expected delivery.
Pay - Employer shall pay Maternity benefit equal to Basic +DA+ Cash
Allowances + Incentive Bonus for the period of absence to the women employee.
Leave- The woman employee is eligible to get maternity benefit for 84
days (i.e 12 weeks). Out of the 84 days , the period before delivery should be
maximum 42 days
Medical Bonus - Employer should pay Rs 250/- to the woman employee as Medical
Bonus if no prenatal and post natal care is provided to the concerned woman
employee free of charge
Other Leaves (with wages
as in maternity benefit) arising out of pregnancy
a) Miscarriage, Medical termination-
6 weeks from day after pregnancy Miscarriage, Medical
termination of Pregnancy
b) Tubectomy- 2 weeks from the day after tubectomy
c) Illness due to Pregnancy, Delivery-
One month
Nursing breaks
Every woman delivered of a child who returns to duty after such
delivery shall, in addition to the interval for rest allowed to her, be allowed
in the course of her daily work two breaks of the prescribed duration for
nursing the child until the child attains the age of fifteen months.
Claim
for Maternity benefit and Payment
1.
A woman who is pregnant shall give a notice to the employer mentioning the
Following:
·
Date from which she will
be absent (not being earlier than 42 days from expected date of delivery)
·
Maternity benefit to be
paid to her or to her nominee.
·
However, if a woman
employee was unable to give a Notice to the employer when she was pregnant, she
may do so as soon as possible after the delivery.
2. On
receiving the notice, the employer shall make the payment to the female
employee/
nominee within 48 hrs.
Prohibition
for dismissal during absence due to Pregnancy
1. An
employer cannot dismiss a female employee for absence who is availing maternity
benefit.
2. Such
a dismissal by the employer should not deprive a female employee from claiming
maternity benefits
3. However,
an employer can deprive a female employee of the maternity benefit if
the discharge is due to Gross misconduct.
Leave
for miscarriage
In case of miscarriage, a woman shall, on production
of such proof as may be prescribed, be entitled to leave with wages at the rate
of maternity benefit, for a period of six weeks immediately following the day
of her miscarriage.
Forfeiture
of Maternity Benefits
The female employee who is availing Maternity benefit from her
employer but works in some other establishment/factory, shall forfeit her claim
to Maternity benefit.
-----------------------------------------------------------------------------------------------------------------
Reservation for Women in Panchayats
The States of Andhra
Pradesh, Bihar, Chhattisgarh, Himachal Pradesh, Jharkhand, Kerala, Madhya
Pradesh, Maharashtra, Odisha, Rajasthan, Tripura and Uttarakhand have provided
50% reservation for women in Panchayats.
In order to enhance the reservation for women in Panchayats from existing one third to not less than one half, a Constitution Amendment Bill was introduced in Lok Sabha in November 2009. This Bill was referred to the Parliamentary Standing Committee on Rural Development by Speaker. The Report of the Standing Committee was considered by the Government and keeping in view their recommendations, an Official Amendment has been formulated to the Original Amendment Bill, to make the reservation for Scheduled Castes and Scheduled Tribes proportionate to their rural population.
The Constitution has provided for reservation of not less than one third seats and offices of Chairpersons of Panchayati Raj Institutions(PRIs) for women. As such, the Elected Women Representatives (EWRs) are not mere proxy for male relatives but statutorily empowered to hold seats and offices in PRIs. Though no survey has been got conducted in this regard by this Ministry, instructions have been issued to all States that it is the responsibility of the Panchayat Officers/Secretaries not to allow the relatives to attend Panchayat meetings by proxy. It has also been conveyed to them that Officers/Secretaries who allow relatives to attend instead of office bearers are also equally guilty of allowing such interference and the defaulting Officers/Secretaries should be proceeded against departmentally.
In order to enhance the reservation for women in Panchayats from existing one third to not less than one half, a Constitution Amendment Bill was introduced in Lok Sabha in November 2009. This Bill was referred to the Parliamentary Standing Committee on Rural Development by Speaker. The Report of the Standing Committee was considered by the Government and keeping in view their recommendations, an Official Amendment has been formulated to the Original Amendment Bill, to make the reservation for Scheduled Castes and Scheduled Tribes proportionate to their rural population.
The Constitution has provided for reservation of not less than one third seats and offices of Chairpersons of Panchayati Raj Institutions(PRIs) for women. As such, the Elected Women Representatives (EWRs) are not mere proxy for male relatives but statutorily empowered to hold seats and offices in PRIs. Though no survey has been got conducted in this regard by this Ministry, instructions have been issued to all States that it is the responsibility of the Panchayat Officers/Secretaries not to allow the relatives to attend Panchayat meetings by proxy. It has also been conveyed to them that Officers/Secretaries who allow relatives to attend instead of office bearers are also equally guilty of allowing such interference and the defaulting Officers/Secretaries should be proceeded against departmentally.
Right to education (short note)
The right
to education has been recognized as a human right in a
number of international conventions, including the International Covenant on Economic,
Social and Cultural Rights which recognizes a right to free, compulsory primary education for
all, an obligation to develop secondary
education accessible
to all, in particular by the progressive introduction of free secondary
education, as well as an obligation to develop equitable access to higher education, ideally by
the progressive introduction of free higher education. Today, almost 70 million
children across the world are prevented from going to school each day. As of
2015, 164 states were parties to the Covenant.
The right to
education also includes a responsibility to provide basic education for
individuals who have not completed primary education. In addition to this
access to education provisions, the right to education encompasses the
obligation to avoid discrimination at all
levels of the educational system, to set minimum standards and to improve the
quality of education.
The Constitution
(Eighty-sixth Amendment) Act, 2002 inserted Article 21-A in the Constitution of
India to provide free and compulsory education of all children in the age
group of six to fourteen years as a Fundamental Right in such a manner as the
State may, by law, determine. The Right of Children to Free and
Compulsory Education (RTE) Act, 2009, which represents the consequential
legislation envisaged under Article 21-A, means that every child has a right to
full time elementary education of satisfactory and equitable quality in a
formal school which satisfies certain essential norms and standards.
Article 21-A and
the RTE Act came into effect on 1st April 2010. The title of the RTE
Act incorporates the words ‘free and compulsory’. ‘Free education’ means that
no child, other than a child who has been admitted by his or her parents to a
school which is not supported by the appropriate Government, shall be liable to
pay any kind of fee or charges or expenses which may prevent him or her from
pursuing and completing elementary education. ‘Compulsory education’ casts an
obligation on the appropriate Government and local authorities to provide and
ensure admission, attendance and completion of elementary education by all
children in the 6-14 age group. With this, India has moved forward to a rights
based framework that casts a legal obligation on the Central and State
Governments to implement this fundamental child right as enshrined in the
Article 21A of the Constitution, in accordance with the provisions of the RTE
Act.
The RTE Act provides for the:
·
Right
of children to free and compulsory education till completion of elementary
education in a neighborhood school.
·
It
clarifies that ‘compulsory education’ means obligation of the appropriate
government to provide free elementary education and ensure compulsory
admission, attendance and completion of elementary education to every child in
the six to fourteen age group. ‘Free’ means that no child shall be liable to
pay any kind of fee or charges or expenses which may prevent him or her from
pursuing and completing elementary education.
·
It
makes provisions for a non-admitted child to be admitted to an age appropriate
class.
·
It
specifies the duties and responsibilities of appropriate Governments, local
authority and parents in providing free and compulsory education, and sharing
of financial and other responsibilities between the Central and State
Governments.
·
It
provides for appointment of appropriately trained teachers, i.e. teachers with
the requisite entry and academic qualifications.
·
It
prohibits (a) physical punishment and mental harassment; (b) screening
procedures for admission of children; (c) capitation fee; (d) private tuition
by teachers and (e) running of schools without recognition,
·
It
provides for development of curriculum in consonance with the values enshrined
in the Constitution, and which would ensure the all-round development of the
child, building on the child’s knowledge, potentiality and talent and making
the child free of fear, trauma and anxiety through a system of child friendly
and child centered learning.
-------------------------------------------------------------------------------------------------------------------------
UNIFORM CIVIL CODE (SHORT NOTE)
Article 44 of constitution of India lays down on important
directive principle of state policy namely, that the state shall endeavor to
secure for its citizen, a uniform civil code throughout the territory of India.
Today citizen of India are governed by different personal Laws.
Base on their religion & community. A UCC ensure that all citizen of India
are governed by the same set of secular civil laws in matters of Marriage, Divorce,
Maintenance, Adoption, etc. under the present law Hindus are bound by the law
to practice Monogamy as Bigamy (having more than one wife) is an offence,
whereas Muslims are allowed by, thus personal law to have 4 wives at a time.
Similarly, whereas Hindus have a comprehensive enactment on adoption, this
concept is not recognizing by the personal laws of Christians & Parsis, if
UCC is enacted all citizen of India would be governed by the same law in all
such matters.
The objective underline a UCC is to enhance National Integration
by eliminating contradiction based on religious ideologies; all communities in
India would then stand on a common platform on civil matters like Marriage
& Divorce which are currently governed by Divorce personal laws. The question
arise is if the same law of contract and fact applies to a Hindu and Muslim,
why not a same law of Marriage and Divorce?
As observed by Supreme Court in Sarla Mudgals case the
implementation of UCC is imperative for the protection of oppressed as well as
the promotion of National Integrity and unity. It is based on the concept that
there is no logical connection between religion and personal law in a civilized
society. Marriage, Divorce, Adoption, Succession and the like are matters of
secular nature and can therefore be regulated by law applicable to all people
in a country.
Time and again the judiciary has given a loud and clear call for
the implementation of UCC in India. In 1985, in Mohammed Ahmed Khan V/s Shah
Bano Begum Popularly known as Shahbanu’s case, the Supreme Court reminded the
parliament in very strong terms of frame UCC. In that case, poverty stuck
Muslim woman who was given a triple divorce by her Muslim husband, claimed
maintenance from her husband u/s 125 of CrPc. The Supreme Court held that she
did not have such right and observed that even the Quran impairs on obligation
on a Muslim husband to make a provision for his Divorce wife.
Kuldeep Singh J. said that article 44 is based on the concept
that there is no necessary connection between religion and personal law in a
civil society. Marriage, Succession and like matters are of a secular nature
and therefore, they can be regulated by law.
Our legal system is uniform in many respects. For example the Contract
Act, Workmen’s Compensation Act, The Indian Penal Code, The Civil Procedure
Code, Income Tax Act Evidence Act, Land Laws, Labour Laws Etc, are applicable
to all person irrespective of their Caste, Religion, Age Or Sex. Our personal
laws like Hindu Law, Muslim Law, Parsi Law, Christian Law are based upon the
respective religious dogmas and customs. Personal law are applicable in the
field of maintenance, marriage, divorce, succession, adoption, custody of
children etc. various personal law are inequal an in violation of constitution
of India and human rights also. Persons should not be discriminated with
respect to their personal matters like marriage, maintenance, divorce etc. only
on the ground of religion. Such discrimination violates Article 13 And Article
14. If we look minutely, the demand is not for a uniform civil code but for
uniform civil laws. The reason is that except these family matters, all Indian
laws are uniform and apply to all communities equally.
UCC
IN GOA:
While
the entire country swings in uncertainty over the implementation of UCC, the
tiny state of Goa has shown the right path to the rest of the country. While a
wide civil code is still being debated, a positive step in this direction has
already been taken several years ago, by the state which has enacted a set of
family laws which applies to all family in Goa. There is no discrimination in
this code between Hindus or Muslim or Christians or any other community. Based
on Portuguese civil code 1876 it governs personal matters like Marriage, Divorce,
Succession, guardianship, etc. and embraces the concept of general equality.
Under
this code every birth, death and marriage is compulsory registrable. The code
provide equal decision of property between husband and wife and also between
children, irrespective of children it enacts the rule of Monogamy and Muslims
and whose marriage are registered in Goa can neither take a second wife nor
divorce the existing one by pronouncement of Talak.
With
regards to distribution of property at the time of divorce each spouse is
entitled in case of divorce to half a share in property. As far as succession
is concerned in case of death of spouse, it is provided that ownership of half
the poverty is to be retained by the serving spouse and other half is equally
divided among the children, irrespective of whether they are male or female,
and whether they are unmarried or have got married and left the house. This
provision has disable parents from totally disinheriting their children, because
the children fall in the category of what was known as mandatory heir.
--------------------------------------------------------------------------------------------------------------------------
IMPORTANT CONSTITUTIONAL AND LEGAL PROVISIONS FOR WOMEN IN INDIA
The principle of gender equality is enshrined in the Indian Constitution in its Preamble, Fundamental Rights, Fundamental Duties and Directive Principles. The Constitution not only grants equality to women, but also empowers the State to adopt measures of positive discrimination in favour of women. Within the framework of a democratic polity, our laws, development policies, Plans and programmes have aimed at women’s advancement in different spheres. India has also ratified various international conventions and human rights instruments committing to secure equal rights of women. Key among them is the ratification of the Convention on Elimination of All Forms of Discrimination against Women (CEDAW) in 1993.
1. CONSTITUTIONAL PROVISIONS
The Constitution of India not only grants equality to women but also empowers the State to adopt measures of positive discrimination in favour of women for neutralizing the cumulative socio economic, education and political disadvantages faced by them. Fundamental Rights, among others, ensure equality before the law and equal protection of law; prohibits discrimination against any citizen on grounds of religion, race, caste, sex or place of birth, and guarantee equality of opportunity to all citizens in matters relating to employment.
Articles 14, 15, 15(3), 16, 39(a), 39(b), 39(c) and 42 of the Constitution are of specific importance in this regard.
Constitutional Privileges
(i) Equality before law for women (Article 14)
(ii) The State not to discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them (Article 15 (i))
(iii) The State to make any special provision in favour of women and children (Article 15 (3))
(iv) Equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State (Article 16)
(v) The State to direct its policy towards securing for men and women equally the right to an adequate means of livelihood (Article 39(a)); and equal pay for equal work for both men and women (Article 39(d))
(vi) To promote justice, on a basis of equal opportunity and to provide free legal aid by suitable legislation or scheme or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities (Article 39 A)
(vii) The State to make provision for securing just and humane conditions of work and for maternity relief (Article 42)
(viii) The State to promote with special care the educational and economic interests of the weaker sections of the people and to protect them from social injustice and all forms of exploitation (Article 46)
(ix) The State to raise the level of nutrition and the standard of living of its people (Article 47)
(x) To promote harmony and the spirit of common brotherhood amongst all the people of India and to renounce practices derogatory to the dignity of women (Article 51(A) (e))
(xi) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat to be reserved for women and such seats to be allotted by rotation to different constituencies in a Panchayat (Article 243 D(3))
(xii) Not less than one- third of the total number of offices of Chairpersons in the Panchayats at each level to be reserved for women (Article 243 D (4))
(xiii) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality to be reserved for women and such seats to be allotted by rotation to different constituencies in a Municipality (Article 243 T (3))
(xiv) Reservation of offices of Chairpersons in Municipalities for the Scheduled Castes, the Scheduled Tribes and women in such manner as the legislature of a State may by law provide (Article 243 T (4))
2. LEGAL PROVISIONS
To uphold the Constitutional mandate, the State has enacted various legislative measures intended to ensure equal rights, to counter social discrimination and various forms of violence and atrocities and to provide support services especially to working women. Although women may be victims of any of the crimes such as 'Murder', 'Robbery', 'Cheating' etc, the crimes, which are directed specifically against women, are characterised as 'Crime against Women'. These are broadly classified under two categories.
(1) The Crimes Identified Under the Indian Penal Code (IPC)
(i) Rape (Sec. 376 IPC)
(ii) Kidnapping & Abduction for different purposes ( Sec. 363-373)
(iii) Homicide for Dowry, Dowry Deaths or their attempts (Sec. 302/304-B IPC)
(iv) Torture, both mental and physical (Sec. 498-A IPC)
(v) Molestation (Sec. 354 IPC)
(vi) Sexual Harassment (Sec. 509 IPC)
(vii) Importation of girls (up to 21 years of age)
(2) The Crimes identified under the Special Laws (SLL)
Although all laws are not gender specific, the provisions of law affecting women significantly have been reviewed periodically and amendments carried out to keep pace with the emerging requirements.
Some acts have special provisions to safeguard women and their interests like
(i) The Family Courts Act, 1954
(ii) The Special Marriage Act, 1954
(iii) The Hindu Marriage Act, 1955
(iv) The Hindu Succession Act, 1956 with amendment in 2005
(v) Immoral Traffic (Prevention) Act, 1956
(vi) The Maternity Benefit Act, 1961 (Amended in 1995)
(vii) Dowry Prohibition Act, 1961
(viii) The Medical Termination of Pregnancy Act, 1971
(ix) The Contract Labour (Regulation and Abolition) Act, 1976
(x) The Equal Remuneration Act, 1976
(xi) The Prohibition of Child Marriage Act, 2006
(xii) The Criminal Law (Amendment) Act, 1983
(xiii) Indecent Representation of Women (Prohibition) Act, 1986
(xiv) Commission of Sati (Prevention) Act, 1987
(xv) The Protection of Women from Domestic Violence Act, 2005
3. SPECIAL INITIATIVES FOR WOMEN
(i) National Commission for Women : In January 1992, the Government set-up this statutory body with a specific mandate to study and monitor all matters relating to the constitutional and legal safeguards provided for women, review the existing legislation to suggest amendments wherever necessary, etc.
(ii) Reservation for Women in Local Self -Government : The 73rd Constitutional Amendment Acts passed in 1992 by Parliament ensure one-third of the total seats for women in all elected offices in local bodies whether in rural areas or urban areas.
(iii) The National Plan of Action for the Girl Child (1991-2000) : The plan of Action is to ensure survival, protection and development of the girl child with the ultimate objective of building up a better future for the girl child. National Policy for Children-2013 was adopted by the Government of India on 26th April 2013. National Plan of Action for Children 2016 is in Draft Format.
(iv) National Policy for the Empowerment of Women, 2001 : The Department of Women & Child Development in the Ministry of Human Resource Development has prepared a “National Policy for the Empowerment of Women” in the year 2001. The goal of this policy is to bring about the advancement, development and empowerment of women. National Policy for the Empowerment of Women, 2016 is under draft stage.
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