The Constitution and the different Acts passed by the Union Governments and the states give special protection to women, aware of their weak position. In spite of all these pieces of legislation loaded in favour of women, their condition is improving only at a snail’s pace.
Social taboos, tradition and poor literacy rate of women contribute to this situation. Owing to women’s educational backwardness, many laws remain only on paper, most women not even hearing about them.
The result is that they tolerance in insufferable marriage, never thinking of a divorce; they work without security of job and under humiliating conditions; they suffer the worst when they have to come into contract with the police.
This is the reason why every intelligent and educated woman should have some preliminary knowledge of law – not only to save herself but also to help her less fortunate sister.
Starting with the Constitution, we shall deal with the laws affecting women. The Constitution grants the fundamental right to equality to women. Article 14 says that the state shall not deny to any person equality before law or the equal protection of the laws.
Article 15 says that the state shall not be discriminate against any citizen on ground only of sex. No citizen shall, on ground only of sex, be subject to any disability, liability, restriction or condition with regard to access to shops, public restaurants and place meant for the use of general public.
The Constitution further provides that the state is free to make special provisions for women. Article 16 guarantees equality of opportunity in employment under the Government.
No citizen shall on ground only of sex, be ineligible for, or discriminated against, in Government employment.
Apart from these fundamental rights, which can be enforced by the High Court of the Supreme Court, these are certain guidelines to the state to improve the condition of women.
These are principles adopted by international conventions, though they cannot be enforced through a court of law. Article 39, (a) states; the state shall try to secure to all citizens men and women equally the right to an adequate means of livelihood.
Article 39 (d) asks the Government to ensure that there is equal pay for equal work for both men and women.
Equal pay for equal work has been a goal for which women have been struggling for so long. The little-known Equal remuneration Act was passed in 1976.
The Minimum Wages Act, 1948, does not permit disparity in minimum rates of wages on the ground of sex. Despite all these laws, in almost all industries and agricultural fields, discrimination persists and employers still exploit women in various ways.
The Central Government passed a law, the Maternity Benefits Act in 1961, to provide job security for women during and after pregnancy and to provide maternity benefits to them.
The law applies to women working in factories, mines, plantations and establishments showing acrobatic performances and the like.
The Government can make the law applicable to new establishments. But those covered by the ‘Employees’ State Insurance Act will not be covered by this Act.
The provisions of the Maternity Benefits Act protect not only the health of the mother but also that of the unborn child. Under Section 4, a woman cannot be made to work by her employer during the six weeks immediately following her delivery or miscarriage.
No woman shall be required to do hard in the advanced stage of pregnancy (one month proceeding the six weeks before the date of excepted delivery).
She cannot be asked to do work which involves long hours of standing or which any way is likely to interfere with her pregnancy to the normal development of the foetus or is likely to cause miscarriage or otherwise adversely affect her health.
An employer cannot allot such arduous work to a pregnant woman even if she requests it.
The pregnant working woman is entitled to payment of maternity benefit for the maximum of 12 weeks, for instance, six weeks before and six weeks after delivery.
Maternity benefit is payment at the rate of average daily wages for the period of her actual absence immediately before her delivery and for six weeks immediately after that, “Wages” means all remuneration in the contract of employment and includes all allowances (DA, HRA, etc) and incentive bonus.
However, it does not include any bonus other than incentive bonus, overtime payments, contributions to pension or provident fund, and gratuity. The average wage is calculated from the average of the three month before she goes on maternity leave.
The woman must have worked at least 160 days in the establishment before claiming maternity benefit if the woman dies during the benefit period she will not be entitled to payment for the rest of the period. But if the child lives and the mother die, the employer has to pay the benefit.
A pregnant woman must give notice to her employer about the maternity period in a proper from. A woman who has not done so shall do so as soon as possible after the delivery. The maternity benefit shall be paid in advance.
The detailed rules are given in Section 6 of the Act. Failure to give notice to the employer will not result in the loss of maternity benefit. In such cases, the woman must apply to the inspector for that purpose.
This official will pass orders for payment of the benefits. The woman can nominate a person to receive the amount. The woman is entitled to receive from the employer a medical bonus of Rs. 25 if no medical care is provided for by him free of charge.
In case of miscarriage, the woman can claim leave with wages at the rate of maternity benefit for six weeks immediately following the abortion (Section 9).
If the woman suffers from illness arising out of pregnancy, delivery, premature birth or miscarriage, she would be entitled additionally to leave with wages at the rate of maternity benefit for a maximum of one month (Section 10).
A nursing mother is allowed two breaks (in addition to he usual intervals) during the course of a day’s work to care for the child till it attains the age of 15 months (Section 11).
Section 12 prohibits discharge or dismissal of a working woman who absents herself while using the maternity benefit period. The employer cannot also after the conditions of service during this period. Discharge of the working woman during maternity is prohibited except when there is complaint of gross misconduct against her.
This is protecting her from unscrupulous employers who want to withhold the benefits from her. In case of misconduct, she should be given notice in writing. However, she can appeal against this to proper authorities and their decision shall be final.
The employer also cannot play mischief by deducing wages for nursing breaks or for doing lighter work during pregnancy. Normal wages shall be paid despite reduction in the normal output of her work (Section 13).
If the woman signs any condition contrary to the benefits provided in the act, such condition of services will not be valid. But if the conditions give her more benefits than the Act gives to her, such conditions will prevail. The Act prescribes only the minimum benefits to be provided to a pregnant worker.
The Government is empowered to appoint inspectors to enforce the provisions of the Act. They can enter the premises where women work and inspect office records regarding them. The employer is bound to give information sought by the inspectors. They also have the power to examine other employees.
If any employer fails to comply with the law, he may be punished with three months imprisonment or fine or both.
Miscarriages and Abortions:
Originally, the law dealt with abortions as a crime. The Indian Penal Code listed the following crimes in this context: causing miscarriages, injuries to unborn children, exposure of infants, and concealment of births. The CrPC lays down the procedure for trying those who violate the IPC rules.
In 1971, the Medical Termination of Pregnancy Act was passed by Parliament. In 1975 various rules and regulations regarding abortions were also passed. The law regarding abortions is now very liberal in this country.
The law is deliberately relaxed for population control and to save poor and uneducated people from quack abortionists.
The Acts do not mention “abortions”. They use the word “miscarriage”. Which is also left underfined? But both terms mean the same thing expulsion of embryo or foetus from the womb.
Abortion ends pregnancy. It is brought about by medicine, instrument or in some other manner. Included abortion is a deliberate act of the pregnant woman or of some other person or of both.
A natural abortion is the result of natural causes and is not dealt with by law. Violent and forced abortions are severely dealt with by IPC. The third category is legal abortions. The scope of such abortions is widened by the MTP Act.
According to Sec. 312 of IPC, whoever causes a miscarriage if it is not done in good faith or to save the life of the woman shall be punished with three years jail or fine or both?
If the woman who causes herself to miscarry is also included in this rule. If the woman is in an advanced stage of pregnancy (quick with child), the punishment may extend up to seven years and fine.
While Sec. 312 deals with causing miscarriage with the consent of the pregnant woman, the next sections deals with causing miscarriage without her consent. The punishment for this may even be life imprisonment.
Sec. 314 says that whoever does any act to cause miscarriage which results in the death of the woman will get up to 10 years imprisonment. If death results from miscarriage without the woman’s consent, the punishment could be life imprisonment.
Acts which prevent the child from being born alive or to cause it to die after birth are also punishable with jail up to 10 years. But it will not be a crime if it done in good faith or to save the life of the mother.
If an unborn child is killed by a deliberate, violent act to the mother, it would be punishable with 10 years imprisonment.
The IPC names two more crimes, which are related to child-birth. The first is exposure and abandonment of the child under 12 years by parent or by person having the care of the child (seven years’ jail). The second is concealment of birth by burial or secret disposal of the body (two years).
The MPT Act extends the scope of legal abortions. Sec. 3 of the Act says : notwithstanding the provisions of IPC, a registered medical practitioner may terminate the pregnancy of a woman in certain situations.
If the pregnancy is less than 12 weeks old, the doctor may terminate it with the consent of the woman if she is above 18 years. If she is below 18, or of unsound mind, her guardian may give consent in writing.
If the pregnancy has exceeded 12 weeks, but is less than 20 weeks, two doctors must concur on the need for termination.
The doctor or doctors may conduct abortion only on two conditions: (1) the pregnancy, in their opinion, would involve a risk to the life of the woman, or of grave injury to her physical or mental health. (2) The doctors must be convinced that there is substantial risk that if the child was born, it would suffer from serious physical handicaps or abnormalities.
Though these conditions look very strict, the explanations given in the Act make them very liberal. When the woman says that the pregnancy was caused by rape, it will be presumed that it will cause grave injury to her mental health.
If the pregnancy is caused by the failure of a contraceptive, such “unwanted pregnancy” in a married woman may also constitute grave injury to her mental health. To ascertain the injury, the woman’s “environment” may be taken into account.
The law makes it compulsory that abortions will be carried out only in hospitals or places approved by the Government. This is t exclude quacks that perform abortions illegally.
Another liberal provision of thee Act is that termination of pregnancy is allowed even beyond 20 weeks in case of immediate danger to the life of the woman. Only a medical practitioner is allowed to conduct abortion. Others performing it will be dealt with under IPC.
The Government passed certain rules and regulations regarding abortions in 1975. The rules specify the qualifications of the doctor who can conduct an abortion, the requirements of the place of abortion, and the procedure for approving such place.
Cancellation or suspension of such certificate of approval is also provided for not complying with the standards provided in the rules.
The regulations passed in 1975 assure maintenance of proper records and secrecy. The name and particulars of the woman are entered in a register and this register is a secret document. This register will be destroyed after five years.
The forms and other information (e.g., complications following the abortion) must be sent in covers marked ‘secret’ to the Chief Medical Officer by the doctor who performs the abortion.
Crime and Women:
The Indian Penal Code defines a number of crimes by the against woman and sets out punishments for such. Some other major Acts which involve women are immoral Traffic (Prevention) Act, the Juvenile Act and the Criminal Procedure Code.
The IPC devotes Chapter XX to offences relating to marriage. The Code is over 120 years old, and the antiquity often shows in its provisions.
For example, in the case of adultery, the woman does not commit an offence. Only the man is punished with fine or five years in jail or both.
The woman is not to be punished even as an abettor in the offence. Adultery is committed when a person has sexual intercourse with a woman “whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man.
Another offence is taking or enticing away a woman from her husband or guardian with intent to have illicit intercourse with her. Concealment of the woman is also included in this crime which is punishable with two years’ imprisonment and fine.
Polygamy is punishable with seven years’ imprisonment. The code says whoever, having a husband or wife living, marries again commits this offence. Partners of an invalid marriage are exempted from this rule.
Also, if the spouse was absent and not heard of for seven years, the other spouse can marry again. But he or she should inform the new partner “the real state of facts within his or her knowledge”.
Whoever goes through the marriage ceremony “dishonestly or with a fraudulent intention”, knowing that he or she is not lawfully married, also commits an offence (Punishment up to 7 years in jail and fine).
Any man who deceives a woman and makes her believe that he is her lawful husband and has intercourse with her or cohabits with her is committing a serious crime (Punishment up to 10 years and fine).
The most serious crime against women listed in the code is rape (Section 375), punishable with life imprisonment.
There are five ways in which sexual Intercourse can become rape. First, if the intercourse was against the woman’s will. Second, if it was without her consent. Third, if the consent of the woman was obtained by putting her in fear of death or injury. Fourth, when the man knows that he is not her husband, but she consents because she believes he is her husband. Fifth, when the girl is under 16, whether she gives her consent or not.
There is an important exception: Sexual intercourse with one’s wife cannot be rape unless the girl is under 15.
The IPC also mentions an “unnatural offence” (Section 377) and defines it vaguely as “carnal intercourse against the order of nature with any man, woman, or animal”. This would include incest, homosexuality, sadism, masochism, exhibitionism, oral sex, voyeurism, sodomy and bestiality.
Marriage is licensee only to normal sex and a man cannot force his wife to succumb to his curious sex behaviors like sodomy or oral sex. Though these are crimes, legally speaking, such occurrences are not uncommon and the women either cooperate or suffer in silence.
If the wife is a victim of sadism, forcible sodomy or such other crimes by her husband, she can get a divorce on the ground of cruelty.
Homosexuality or Tran sexuality would be “incompatibility” in marriage and they can be grounds for divorce, in the case of oral sex and other less harmful cases, the courts may warn, but they are not considered adequate grounds for divorce.
The IPC is very strict about unnatural offences and provides even imprisonment for life for such crimes.
Kidnapping, abduction and slavery are some of the crimes which women fall prey to. According to the I PC, whoever takes or entices a minor (body under 16 and girl under 18) or a person of unsound mind out of the keeping of the lawful guardian without his consent is said to kidnap the minor.
So a girl’s father must consent is said to kidnap the minor. So a girl’s father must consent before a boy cab takes her away if she is under 18.
Thus runaway lovers can be hauled up by the police and the boy can be charged with kidnapping if the girl is below 18. Kidnapping can invite imprisonment up to seven years.
It is abduction when a person compels by force, or by any deceitful means induces another to go away from any place. Kidnapping or abducting with intent secretly to confine a person will invite more rigorous punishment.
So also, kidnapping, abducting or inducting a woman to compel her to marry against her will or to force her to illicit intercourse may be punished with 10 years’ imprisonment.
Similar punishment will be given to those who induce a girl under 18 to go away from any place, or to do an act, which he knows will force her to illicit intercourse.
Importing girls under 21 from a foreign country for illicit intercourse is also punishable to the same extent.
Selling miners for prostitution is a grave crime and the IPC deals extensively with it. Whoever sells? Lets to hire or disposes of any person under 18 for prostitution or when he knows that she will be used for prostitution is guilty.
Similarly, whoever buys hires or obtains possession of a girl under 18 for immoral purposes is guilty. In both cases, the law will presume that the person is guilty (of selling or buying) and it is for the accused to prove that he is innocent.
Law regarding prostitution and immoral traffic is dealt with later. Slavery and compulsory labour are also crimes.
There are some other crimes affecting women which are dealt with by the IPC. Defamation is one such.
If a woman is wrongly accused of an act which will affect her reputation (“woman of loose morals” or “dowry-hungry mother-in-law”), she can complain to the police against her deformers.
Or she can file a civil case against them claiming damages.
Another crime, which is more common, is eve-teasing or as the Penal Code calls it, “insulting the modesty of a woman”. This can be done in many ways by words, sounds or gestures, or by exhibiting an object. The intention must be to insult her modesty or to intrude upon her privacy.
Whoever does obscene acts or sings obscene songs in any public place can be punished.. Similarly, sale of obscene objects (books, pictures, figures) to youth below 20 is also a crime.
In this context, it is also useful to acquaint oneself with some provisions of the CrPC dealing with women. Section 180 protects women from unnecessary harassment by police.
A police officer can call a male to the police station for interrogation or to demand information during investigation. But in the case of a woman, or a male under 15 years, they are not required to go to the police station. The police officer must of to the place where the woman or boy resides.
When a police officer must search a woman, “the search shall be made by another female with strict regard to decency” (Section 51).
When an accused woman has to be examined by a doctor for evidence, only a lady doctor or someone under her supervision is allowed to do so (Section 53).
If an offender hides in a house of a woman, who according to custom does not appear in public, the police cannot enter the house or break it open without giving notice to the woman and telling her that she is at liberty to withdraw (Section 47).
When a summons cannot be served on a person, it can be served at his house even if he is not available, but it cannot be served on a woman.
Only an adult male member of the family of the person wanted can accept the summons in such cases (Section 64).
If a woman sentenced to death is found to be pregnant, the High Court shall order the execution to be postponed. It may also commute the sentence to imprisonment for life (Section 416).
Section 198 deals with prosecution for offences against marriage. It provides that a complaint of bigamy may be fled by any person related to the wife by blood, marriage or adoption after getting consent of the court. This helps the aggrieved woman, when she herself cannot take action.
Lastly, the CrPC lists certain offences relating to women which may be compounded compromised) in some cases (Section 320). For instance, adultery may be compounded by the husband of the woman.
Similarly, the husband can compounded the sentence for enticing, taking away or detaining a married woman. A woman assaulted can compound the offence of using criminal force or outraging her modesty.
Marrying again during the lifetime of a husband or wife can be compounded by the husband or wife of the person so marrying. A woman who is insulted or whose modesty is offended can also show mercy towards the offender.
Because to the rising number of reports of dowry killings and cruelty to wives by their husbands and relatives, a new chapter was added to the Indian Penal Code in 1983.
According to Section 498A, a husband or relative of a husband or relative of a husband who subjects a woman to cruelty shall be sentenced to imprisonment up to three years and shall also be liable to fine.
Cruelty is explained as “any willful conduct which is of such nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical )of the woman; or the harassment of the woman where such harassment is with a view to coercing her or any person related to her to me any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such a demand.”
According to the law of evidence, if a woman commits suicide within seven years of her marriage, and it is shown that her husband or his relative had subjected her to cruelty, the court would presume hat the suicide was abetted by her husband or such a relative.
The burden is on the accused to show that they did not abet the suicide. Otherwise, they will be punished for abetment of suicide.
The Immoral Traffic (prevention) Act 1996 deals with sex as a business activity. Prostitution is defined as the “exploitation or abuse of persons for commercial purposes.”
Before 1986, a prostitute was defined as a woman who offered her body for promiscuous sex for hire. But now the law covers males also.
The main targets of the law are pimps, agents, managers or keepers of brothels and those who promote or aid prostitution as business. The law is lenient to the victims of exploitation, or the prostitutes themselves.
The law prescribes one to three years jail and fine for the keepers or managers of brothels. Any person who allows prostitution in his property or tenanted is also liable to imprisonment.
Punishment for living on the earnings of prostitutes is seven to ten years in jail and fine. Procuring and inducing persons for the sake of prostitution are more serious crimes, inviting jail up to 14 years.
The prostitutes themselves are punished only under two circumstances: (1) when they operate in a public place, like within 200 meters of schools, hospitals, nursing homes or places of worship, (2) when they make positive attempt to seduce or solicit persons with word, gestures, and exposures and indulge in molestation.
The law enables the government to set up corrective institutions and protective homes for prostitutes. A woman found guilty of soliciting may be sent to a corrective institution, instead of being sentenced to jail.
Any person who is carrying on prostitution by will or by force may apply to the nearest magistrate to take him or her and be kept in a protective home and be provided care and protection by the court.
A magistrate can also direct the police to rescue persons in a brothel and produce them before him. The law also provides for special police officers to deal with prostitution, advisory bodies and special courts.