BLS LLB

Discuss fully the provision of maintenance under “Hindu Adoptions and maintenance Act – 1956”

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

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;

(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.

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Discuss In Detail Rape Under Section 375 Of Ipc

Discuss The Offence Against Women Under The IPC With Respect To The Following :

1. Dowry Death

2. Rape

3. Adultery

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

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

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,

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

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

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.
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

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.

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.
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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.

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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.

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.

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.

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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 1^st 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 :

1. genetic abnormalities

2. metabolic disorders

3. chromosomal abnormalities

4. certain congenital malformations

5. haemoglobinopathies

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.

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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.

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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.

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· 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.

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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.

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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 31^st 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.

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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.

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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.

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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 1^st 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.

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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.

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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.

BLS LLB

Thursday, 26 April 2018

PROTECTION OF WOMEN AND CHILDREN - SEM - X (BLS/LLB)

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