Embarking the new decade with continuing to bridge the Gender Asymmetry in India
It is rightly said that – “when you educate a man you educate an individual but when you educate woman you educate a whole family”. However, presently the saying needs to change to “when you educate a man you educate an individual but when you educate a woman you educate your coming generations and the people around you.”
“यत्र नार्यस्तु पूज्यंते रमंते तत्र देवता”
Our ancient texts also embedded the importance and role of women in our society. However, the status of women has derogated in the recent times and thereby it is quintessential for everyone to know their rights in order to safeguard from the abuses and exploitations.
Recently, the United States of America along with the whole world celebrated the sworn-in of the first women vice president, Kamla Harris. The world often forgot that women of Bharat, way before them, has successfully served our country in different capacities, namely Smt. Indira Gandhi (first prime minister of India serving for three consecutive terms (1966–77) and a fourth term from 1980 until she was assassinated in 1984) and Smt. Pratibha Devi Singh Patil (12th President – 2007 – 2012) and various positions in numerous other States and UTs governors and important cabinet positions are held by women like ministry of finance by Smt. Nirmala Sitaraman.
In the pre-independence India, the women were victims of multiple ill-information and bigotry, where the other narcissistic gender restricted the growth and development opportunities. The role of women in the freedom struggle (Rani Laxmi Bai) and building the country in its present form (Savitri Bai Phule – First female teacher of India) cannot be overlooked. Many social reformers in the past, like Raja Ram Mohan Roy have played vital role in upliftment of women in India.
In the post-independence India, the constitution makers understood the need to protect and safeguard the rights of women in the country and thereby consciously included few of the vital rights in the constitution as fundamental as well as constitutional rights.
Key privileges to women vested under Constitution of India
The key privileges of women are as follows:
- Article 14 – provides equality before the law and no discrimination based on gender
- Article 15 (1) – prohibits the discrimination on grounds of sex
- Article 15(3) – State can make special provisions for women (Reservation for women)
- Article 16 – No discrimination in respect of employment or office under the State on grounds of sex.
Directive Principles of State Policies
- Article 39 (a) and (d) – state to direct the policy towards securing equal right to an adequate means of livelihood. And equal pay for equal work irrespective of gender.
- Article 39A – inserted vide 42nd Constitutional amendment provides free legal aid to women.
- Article 42 – state is required to make provisions pertaining to maternity relief.
- Article 46 and 47 – to promote and protect the educational and economic interest of the people and to raise the level of nutrition and standard of living of the people.
- Article 51A (e) – to renounce practises derogatory to the dignity of women.
- Article 243D (3) and (4) – inserted vide 73rd amendment – 1/3rd of the total number of seats of the panchayat shall be reserved for women. Similarly, the offices of chairpersons in the panchayat shall be reserved for women.
- Article 243T (3) and (4) – inserted vide 74 amendment – likewise in the panchayat, seats of municipalities and chairman are reserved for women.
Matrimonial & Family Matter
In Matrimonial matters in India, the legislations as well as the judiciary has held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife. The matrimonial age for women in India as prescribed by the Prohibition of Child Marriage Act is 18 years and in the event of any child marriage, such marriage is voidable at the option of either of the contracting parties. It is important to note that this right can be exercised by the contracting parties within 2 years of attaining the maturity.
Similarly, the women in India have various maintenance benefits against multiple relationships in her lifetime namely from husband, father, father-in-law, children. The liability to maintain the wife is entrusted upon her relatives. Under various personal laws as well as in the code of criminal procedure, a women has enormous opportunities for maintenance as provided below:
- Section 36 and 37 of Special Marriage Act, 1954 – The women have right to maintenance under this legislation, if the marriage was solemnised under this Act (including inter-faith marriages). This is a secular legislation and is applicable on all irrespective of religion of the parties. Section 36 entitles the maintenance during the pendency of proceeding under the legislation. Similarly, Section 37 provides permanent alimony and maintenance to women.
- Section 24 and 25 of Hindu Marriage Act, 1955 – this legislation is applicable only to a marriage solemnised under this legislation between Hindus. Section 24 provides maintenance during the pendency of proceedings under the legislation whereas Section 25 provides permanent maintenance and alimony to women.
- Section 18, 19 and 20 of Hindu Adoptions and Maintenance Act, 1956 – Section 18 prescribes liability on a Hindu husband to maintain her Hindu wife during her lifetime, including entitlement to claim a separate residence, without forfeiting her right to maintenance. This right is vested during the subsistence/existence of marriage, which means right to maintenance without any matrimonial proceedings pending between the parties. Section 19 provides maintenance to a widowed daughter-in-law from her father-in-law, where she is unable to maintain herself out of her own earnings or other property or where she has no property to maintain and unable to obtain maintenance from the estate of her husband, father or mother or from her son or daughter. Section 20 casts an absolute right on the father to maintain her unmarried daughter who is unable to maintain herself out of her own earnings.
- Live-in Relationships – In cases of ‘live-in-relationships’ the Chanmuniya v. Virendra Kumar Singh Kushwaha & Anr. (2011) 1 SCC 141, the Hon’ble Supreme Court held that a woman can ask for maintenance under Section 125 Cr.P.C. against the man with whom she has cohabitated for a long period of time. The Hon’ble Court expanded the meaning of ‘wife’ by including a woman living in a de facto Thereby, under Section 125 of Code of Criminal Procedure (CrPC) strict standard of proof of marriage is unnecessary. In Indra Sarma v. V.K.V. Sarma (2013) 15 SCC 755, the Hon’ble Supreme Court laid down the guidelines for identification a live-in relationship falling within the expression ‘relationship in the nature of marriage’. The Courts in India has considered the de facto relationships equivalent to the marriage for extending and safeguarding the rights of woman, arising from a formally solemnised marriage.
- Section 125 of Code of Criminal Procedure – The summary proceedings before the Magistrate under this section provides that a man, irrespective of his religious belief/faith, he is liable to pay maintenance to her wife, children and parents. This section provides pendente lite and expenses of the proceedings as well as permanent monthly allowances.
- Maintenance and Welfare of Parents and Senior Citizen Act, 2007 – The Maintenance Tribunal may grant a monthly allowance for maintenance of senior citizens (parents/grand-parents and childless senior citizen) from children (son, daughter, grandson and grand-daughter) or their relative (legal heir) on an application received under Section 4 and 5 of the Act.
- Section 20, 22 and 26 of Protection of Women from Domestic Violence Act, 2005 (DV Act) – Section 20 provides maintenance to victims of domestic violence i.e. woman and children. Section 22 prescribes compensation for injuries including mental torture and emotional distress. Section 26 of the Act provides that the maintenance under this legislation shall be in addition to any other relief that the aggrieved person may seek in a suit or legal proceeding before a civil or criminal court.
Criteria for ascertaining maintenance
The Hon’ble Supreme Court in Rajnesh v. Neha & Anr., Crl. Appeal No. 730/2020, has evolved additional criteria against the statutory criteria, for ascertaining the quantum of maintenance, as follows:
- The age and employability of the applicant, who might have adequate qualifications but has diverted her focus from her career to the matrimonial home, as after the separation, she would require to start afresh in the career.
- The right of residence of the applicant needs to be secured on the same level of alternate accommodation as enjoyed by her in the share household. The Magistrate may ask the respondent to pay her rent and other payment to safeguard adequate alternative accommodation. This right is preserved under the provisions of DV Act.
- The earning of the applicant will not bar her from being awarded maintenance by the husband.
- The living expenditure, educational expenses as well as the extra/miscellaneous expenses incurred with respect to children may be claimed in addition.
- Serious disability or ill health of the spouse, child/children from the marriage/dependant relative who require constant care and recurrent expenditure.
The Hon’ble Court in Rajnesh (Supra) also held that the maintenance shall be payable from the date of filing of the application to the applicant.
Inheritance Rights of Women
The women in the present have succession and inheritance rights also. The Amendment in 2005, in the Hindu Succession Act has been applied retrospectively to the women born before the enforcement of the amendment legislation in the recent judgment of Vineeta Sharma v Rakesh Sharma & Ors. (2020) 9 SCC 1, by the Hon’ble Supreme Court. The Hon’ble Court has vested the coparcenary rights of women to not only women who were born after 2005 whereas all women living on day of enforcement of Act.
Sexual Harassment at work place against Woman
The judiciary has played a vital role in safeguarding the women at the workplace from sexual harassment. In the case of Vishaka & Anr. V. State of Rajasthan & Ors., (1997) 6 SCC 241, the Hon’ble Supreme Court due the absence of any guidelines or legislation governing the sexual harassment at workplace has proposed the set of guidelines. After 16 years of the Vishaka (supra) judgment, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, the mandate requires to constitute Internal Complaints Committee (ICC) for a workplace having more than 10 employees and Local Committee at very district level for workplace having less than 10 employees. The aggrieved woman employees can complain to such committee for redressal of their complaints, the committee shall conduct and inquiry in the matter and on the basis of such inquiry, the committee shall make recommendations to the employer or the District Officer, as the case may be. The aggrieved woman from the recommendation may approach the court or tribunal for appeal against the committee within 90 days.
Rape & Allied Offences against women/females/girls
The recent heinous crimes against the woman in the country has caused in the stricter anti-sexual and rape laws under the Indian Penal Code (IPC) as well as the Protection of Children from Sexual Offences (POCSO Act). The recent Criminal Law Amendment Act, 2018 amended the IPC, POCSO and other allied criminal legislations, in which the quantum of punishment for sexual offences were increased, concept of gang rape was introduced and first time death penalty was introduced for rape as well as gang rape of a girl child below 12 years of age.
Compensation to Victim/Survivor of Sexual Offences and other offences
The Code of Criminal Procedure under Section 357A provides the obligation on the State to provide for compensation to the victims of rape and sexual crimes from the fund created for the purpose. The Hon’ble Supreme Court in Writ Petition (C) No. 565/2012 titled as Nipun Saxena v. Union of India, has opined that:
“it would be appropriate if NALSA sets up a Committee of about 4 or 5 persons who can prepare Model Rules for Victim Compensation for sexual offences and acid attacks taking into account the submissions made by the learned Amicus. The learned Amicus as well as the learned Solicitor General have offered to assist the Committee as and when required. The Chairperson or the nominee of the Chairperson of the National Commission for Women should be associated with the Committee.”
In view of the above judgement of the Hon’ble Supreme Court, the National Legal Services Authority (NALSA) drafted the “Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes – 2018” and submitted the same before the Hon’ble Supreme Court of India on 24.04.2018. The Hon’ble Bench was pleased to accept this Scheme and directed all the State Governments/UT Administrations to implement the same in their respective States/UTs. The Hon’ble Supreme Court of India further observed that while nothing should be taken away from this Scheme, but it does not preclude the State Governments/UT Administrations from adding to the Scheme. The aforesaid scheme was extended to victims of POCSO by the Hon’ble Court in the same matter. Later the Government of India enacted the POCSO Rules, 2019, wherein under Rule 9, the victim can claim compensation.
The objective of the aforesaid Section 357A of CrPC or NALSA scheme as well as POCSO Rules is to provide financial assistance to the victim and his/her relatives, for support services such as shelter, counselling, medical aid, legal assistance, education and vocational training depending upon the needs of the victim. The interim/final compensation from the “Women Victims Compensation Fund” can be granted via 2 ways as:
- Suo moto initiation by the State Legal Services Authority (SLSA) or District Legal Service Authority (DLSA) on furnishing of FIR by the SHO/SP/DCP.
- The victim or her dependant can file an application in the SLSA or DLSA for grant of the interim/final compensation.
The stringencies in the legislation has not rescued or reduced the commission of such heinous crimes against woman in the society.
Compassionate Appointment of Married Daughter
The Hon’ble High Courts across jurisdictions have favoured to treatment of married sons and married daughter equally for appointment in government jobs on compassionate grounds.
The Hon’ble High Court of Allahabad in Manjul Srivastava v. State of UP & Ors., 2020 SCC OnLine All 1604, placing reliance on Smt. Vimla Srivastava v. State of UP & Anr. 2016 (1) ADJ 21 and Smt. Neha Srivastava v. State of UP & Anr. Special Appeal (Defective) No. 863/2015 [this judgment was upheld by the Hon’ble Supreme Court in SLP (C) No. 22646/2016.], directed the state to consider the petitioner’s claim for compassionate appointment.
The Maternity Benefit Act, 1961 was amended in 2017, which increased the paid maternity leave to 26 weeks for organisation having minimum of 10 employees.
Basic Rights of Women
- Non applicability of limitation period on registration of an FIR with regard to sexual harassment or rape.
- Registration of FIR without visiting the police station by either email or by post.
- Zero FIR, wherein the complaints pertaining to sexual offences against women can be filed at any police station irrespective of jurisdiction of such police station.
- Recording of statement of a rape victim is preferred to be undertaken by a Lady Metropolitan/Lady Judicial Magistrate under Section 164, Code of Criminal Procedure as per the directions of the Hon’ble Supreme Court in State of Karnataka by Nonavinkere Police v. Shivanna alias Tarkari Shivanna (2014) 8 SCC 913.
- Under Section 228A Indian Penal Code, the disclosure of identity of victims of rape and sexual offences is a criminal offence with an imprisonment of 2 years and fine. Such protections are extended to the victim under POCSO.
- The sexual offences under IPC or POCSO shall be undertaken in-camera proceedings. The Hon’ble Supreme Court in Nipun Saxena v. Union of India (2019) 2 SCC 703, has issued detailed directions and guidelines for preservation of right of dignity of such victims.
- Under Section 46 of Code of Criminal Procedure, the police cannot arrest a woman after sunset or before sunrise, except in exceptional circumstances. Also, the arrest of woman should be undertaken by woman officers of law enforcement agencies.
- The search of an arrested woman shall be undertaken by a woman only, as provided under Section 51(2) of Code of Criminal Procedure.
- The all India – Woman Helpline number is 1091 for women in distress.
The rights and benefits as stated in above laws portray an illusion of idealistic society which is beyond the reality and it is dire needs to introspect and analyse to draw the failure and the methods to catalyse the changes in the society for an egalitarian society.
— Mahi Yadav and Yatharth Gupta
|Chamber||:||204, E-Block, Rajasthan High Court, Jaipur.|
|Office||:||C-89, 201, Jagraj Marg, Mangalam Apartment, Bapu Nagar, Jaipur|
 Shamima Farooqui v. Shahid Khan, (2015) 5 SCC 705.
 Chand Dhawan v. Jawaharlal Dhawan, (1993) 3 SCC 406.
 Kamala & Ors. v. M.R. Mohan Kumar (2019) 11 SCC 491
 Advocates at Majesty Legal, Jaipur. The authors of the article intend to provide an information capsule pertaining to legal and constitutional rights of woman as per the legislation/statute and based on various Acts.