Women’s position during the British period:

Women’s position during the British period:

Notably, in the British period the position of women had undergone drastic changes mainly due to westerns impact on Indian sub-culture pattern. The concept of equality, liberty, individual secularism, although, arose but limited to ruling classes.-

Two major reforms took place during the British regime. These are:-

(1) Social reform movement

(2) Nationalists movement

(1) Social reform movement: this movement emerged during 19^th century and raised the question of equality and equal status of women. Social reformers showed the concern regarding problem of sati, prohibition on re-marriage denial of right to property, child marriage and education to women. The reformer was of the view that giving women access to education and by introducing effective legislation social reform in respect of women can be achieved. Swami Vivekananda, Dayananada Saraswati and Annie Besant were of the opinion the old Vedic period should be revived which was ideal for women’s status., the father of the nation M.K. Gandhi strongly cruised the system of child marriage, sati, prohibition of widows remarriage and Devdasi system.

(2) Nationalists movement:  the nationalist movement drew the attention of a large number of people and generated confidence among women to raise there voice against oppressive system. In 1927, all India women’s conference was held and it proved to be crucial movement onward the right of equality.

Consequently a number of legislation were enacted like widows remarriage act, child marriage act and Hindu women’s right to property act which intended to eradicate social evils, even provisions of industrial laws were appropriately amended  to restore the position of women which prevailed during the Vedic period. The establishment of crèches, reduction of work hours, prohibition on night working hours and restriction to work in mines were introduced in the banner of nationalist movement

It is submitted that during the British period public awareness was created while women’s political and social participation attained momentum.

WOMEN IN INDIAN SOCIETY

                    WOMEN IN INDIAN SOCIETY

The socialist had described the women by propounding different perception. In India, the history speaks that the women are considered as a divine force but the multi-cultured Indian society place the women in different position. Thus, there is no uniform status of women in Indian society. However, civilization showed the overall upliftment of women’s position. According to historian ROMILLA THAPER-

“Within the Indian sub-continent there have been infinite variations on the status of women diverging according to culture malice’s, family, structure, cast, class, property right and morals.”

The Indian philosophies post the women with dual character. On the one hand, she is considered fertile, patient and benevolent but on other hand, she is considered aggressor and represent ‘shakti’.

Position of women in pre-independence period

To study the position of women before the independence period, it is necessary to discuss the position of women during the Vedic periods, post Vedic period and medieval period.

1.    Vedic periods

2.    post Vedic period

3.    medieval period

1.    Vedic periods: undoubtedly, the position of women during the Vedic period was glorious on account of freedom and equality. During this period the women participated in every walk of life. Women studied in Gurukuls and enjoyed the liberty in very sphere. The great women; like Apala, Visvara, Yamini, Gargi and Ghosa stole the lime light and became front runners in society. They acquired efficiency in art, music and even warfare. In punished, the wife has been regarded as true companion of husband. The wife has been blessed to live as a queen in husband’s house in Rig-Veda. This shows the high status of women. The wife has been the root of affluence, gratification and dharma in Mahabharata the man was not religiously competent to perform religious duty without wife. There was absence of pardah system, right to select life partner. However the system of polygamy and dowry was only prevalent with the ruling classes. There was no prohibition of remarriage of widow and also no discrimination between boys and girls. As a result girls were allowed to undergo thread ceremony (upanayana Sanskar).

2.    Post Vedic Period:  During then post Vedic period, the women had suffered drastic hardships and restrictions as propounded by Manu. He attempted to set up a male dominating society by increasing the authority of man. The birth of a girl child was treated disaster for family. Girls were denied access to education. Girls were not allowed to undergo thread ceremony. During this period, pre-puberty marriage system was originated, thus marriageable age of girls were lowered to 9 or 10 years. However, girls belonging to ruling classes were allowed to receive education, training in military, science, administration and fine arts to some extent. Daughter was brought under surveillance of father, as a wife of her husband, as a mother her son. On other hand, Manu believed that where women are dishonored there religious activity becomes fruitless.

Surprisingly, in post Vedic period, the women’s right to property was recognized and the concept of “stridhan” prevailed. As Manu defined – “streedhan” means – “that which was given to her before the nuptial fire, in bridal procession, in token of love and which she had received from father, mother, brother and husband.

3.    Medieval period: the women’s position was further degraded during the medieval period with invasion of India by Alexander and Huns. Society observed security threats with invading soldiers roaming country side. Consequently women’s were placed behind the veils. W0omen were deprived of education and participation in community affair. During the medieval period the social evils such as sati, child marriage, female infanticide, mushroomed extensively. Further social course like dowry had become inevitable particularly in Rajasthan. The system of devdasi and polygamy had also spread widely in countryside. Thus during the medieval period the women were oppressed in every sphere.

CRIMINAL LAW

dowry death

CRIMINAL LAW

In India the criminal law is substantially based on the Indian penal code 1860, however it is supplemented by special laws.

dowry

(i)                Indian penal code 1860

There are certain provision under Indian penal code, 1860 which deals with the offence in the form of domestic violence against women. These are as under:

Ø Dowry death:  According to section 304-B of I.P.C where death of a married women is caused by burns or occurs otherwise than under normal circumstances within 7years of marriage and if it is established that soon before her death she was subjected to ill-treatment or cruelty by her husband or relative of husband such death of married women is treated as dowry death.

force

Ø Forceful termination of pregnancy amounts to violence at home:   In view of section 313 to 316 of I.P.C female infanticide or forcing the wife to terminate pregnancy are also varieties of domestic violence which is recognized as offence under Indian penal code.

burnt

Ø When a woman is driven to commit suicide:  on account of domestic violence especially the bride are subjected to harassment for demand of dowry and compelled to commit suicide.  Abetment of suicide of a disordered mental state of person is an offence punishable with death or 10 years of life imprisonment as provided under section 305 and 306 of the I.P.C.

hurt

Ø Causing hurt and grievous hurt.  It is a common form of domestic violence. Section 319 of I.P.C defines the expression “Hurt” as causing bodily pain, injury, infirmity and disease to any person, however serious hurt is termed as grievous hurt under section 320 of I.P.C.

Ø Unlawful confinement : it is one of the form of domestic violence where women’s movement is restrained or confined within four walls of the house. It is the common form of domestic violence which is punishable under section 399 and 340 of I.P.C.

marital rape

Ø Marital rape: another common form of domestic violence is marital rape, where a wife is living separately under decree of judicial separation or under any custom and man have sexual intercourse with her without her consent it amounts to offence under section 376-A of I.P.C.

Ø Misappropriation of wife’s property: with a view to make wife economically dependant grabbing of wife’s property is common form of domestic violence.

violence

Ø Matrimonial cruelty:  under section 498-A I.P.C Matrimonial Cruelty whether physical mental is an offence. The ‘term’ cruelty under the said section has wide scope that includes various kind of other cruelty.

DOMESTIC VIOLENCE AGAINST WOMEN

  DOMESTIC VIOLENCE AGAINST WOMEN

domestic violence hurts

It Is Well Known Omnipresent Problem That Women Are Subjected To Violence At Home. Especially in Context of Indian Majority of Such Victims Do not Seek Legal Remedies. There Are Many Reasons or This That They Are Economically & Educationally Backward and they are not familiar with legal proceeding and even one of the major reasons that they do not have faith in the legal system of our country. It felt that getting timely justice is ‘mirage’ as one has to undergo cumbersome procedural law and compelled to face series of adjournment in the way to get adequate relief.

domestic violenec

The question arises as to what type of violence or act falls within the ambit of domestic violence as the experience reveals domestic violence takes place in varieties. 

It is to be noted that under Indian law there is no recognized definition of ‘expression’ of Domestic Violence however an attempt can be put forth to define the same.

Ordinarily, expression “domestic violence” connotes sexual abuse or the thread of sexual abuse of women but there are several other abuses known to men when women are targeted to physical, mental, verbal and economic abuse. Certainly these act and conduct would come within the expression of “domestic violence”.

no to violence

It is to be reiterated that under the laws of India the expression “domestic violence” is yet to be defined, but it shall not be taken to mean an act of domestic violence is not punishable in India. There is no solitary form of domestic violence; it differs with situation, individual and household. It impact of domestic violence is to be measured by degree of severity. it has been said that domestic violence could yield drastic and extreme result in form of death though there may be minor scars  and injury in some cases of domestic violence against women, their can be situation when domestic violence would result neither in death nor in scar but have tremendous physiological effect on the victims.

The meaning and scope of domestic violence against women could aptly be clear from glance at criminal law and civil law which address the offence as to domestic violence against women to certain extent.

Sexual Harassment of Working Women At Work Place

Sexual Harassment of Working Women At Work Place

MY BODY IS MY RIGHT

The sexual harassment of women particularly the working women at work place by their male counterpart is one of the evils of the modern society. In India, there is no one who is capable to combat this evil of the sexual harassment of working women.

In order to protect the working lady of our society it is very important that our government should draft and implement an effective and appropriate legislation.

Need Of Effective And Appropriate Legislation:

SEXUAL HARASSMENT

In public interest litigation filed before the Supreme Court, the need of effective legislation to curb sexual harassment of working women was emphasized. In Vishaka vs. State Of Rajasthan the supreme court observed that in absence of any enacted law to provide for effective enforcement of the basic human right of gender equality and guarantee against sexual harassment at work place, the court lays down the guidelines and norms specified hereinafter to observe at work place or other organization, till a legislation is enacted for the said reason. The same is done in exercise of the authority accessible under Article 32 of the constitution of India in the enforcement of the fundamental right and it is further emphasized that there would be treated as law declared by this court under Article 141 of the constitution of India.

  

 The rule and norm prescribe herein are as under:

1     1)   Duty of employer or other responsible person in work place and other institutes:

It is the responsibility of company or any other dependable person in work place or other institution to prevent or deter the commission of acts of sexual harassment by taking all steps required.

2   2)   Definition:- sexual harassment includes such unwelcome sexually determined behavior (whether directly or by implication) as

a)    Physical contact or request for sexual favours

b)    Sexually remarks or showing pornography

MY BODY IS MY RIGHT

c)     Any other unwelcome verbal or non-verbal conduct of sexual nature.

SEXUAL HARASSMENT

Where any of these act is committed in circumstances where under the victim of such conduct has reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary or honorarium or deliberate, whether in govt administration public or private venture such conduct can be humiliating and may constitute health and security difficulty. It is unfair for example; when a woman has reasonable ground to believe that her objection will disadvantage her in connection with her employment or work including recruiting or promoting or when it creates hostile job surroundings. unfavorable penalty may visit if the victim does not consent to conduct in question or raise any objection.

The Medical Termination of Pregnancy Act, 1971

The Medical Termination of Pregnancy Act, 1971

The Medical Termination of Pregnancy

The Indian penal code, 1860, which enacted more than a century a go, on the basis of the then British law, contained some provision regarding the termination of pregnancy. Abortion was a crime, for which the mother as well as the abortionist could be punished except were it has been induced in order to save the life of the mother. This strict law has been observed in the breach all over the country. This breach of law, which went unnoticed, was one of the major factors for the untimely death of pregnant mother. Moreover during the then prevailing circumstances medical facility was not sufficient. In recent year, healthy service has expanded and the services of hospitals are being availed to all classes of people. Doctor has often been confronted with gravely ill or dying pregnant women uterus has been tampered with a view to causing an abortion and consequently has suffered seriously.  In order to save pregnant women’s health, strength and sometime life The Medical Termination of Pregnancy bill was introduced in the parliament.

The Medical Termination of Pregnancy

The Medical Termination of Pregnancy Act, 1971 provides for the termination of certain pregnancies and for matters connected therewith or incidental thereto by registered medical practitioner.

When pregnancy can be terminated by registered medical practitioners:

In term of section 3 of the Medical Termination of Pregnancy Act, 1971 a pregnancy may be terminated by a registered medical practitioner under the following circumstances:-

The Medical Termination of Pregnancy

1)    Where the length of pregnancy does not exceed twelve week, if a medical practitioner is: or 

2)    Where the length of pregnancy exceed twelve week but does not exceed twenty week, if not less than two registered medical practitioner are,

Of the opinion formed in good faith; that-

The Medical Termination of Pregnancy

a)    The continuance of the pregnancy would involve a risk to the life of the pregnant women or of grave injury to her physical or mental health; or

b)    There is a substantial risk That If the Child was Born, It Would Suffer From such Physical or Mental Abnormalities as to Be Seriously Handicapped.

In other words, pregnancy can be by registered medical practitioner Where the length of pregnancy does not exceed twelve week or Where the length of pregnancy exceed twelve week but does not exceed twenty week.

CONSENT:  Pregnancy Of Any Women Who Is Less Than 18 Year or who is mentally ill can be terminated only, with the consent of writing of her guardian [section 3(3)].

The Medical Termination of Pregnancy

Place were pregnancy may be terminated

According to section 4 of Medical Termination of Pregnancy Act, 1971, pregnancy can be terminated either in hospitals established or maintained by the government or at place which is approved by the government or district level committee constituted by the government.

Protection of action taken in good faith.

According to section 6 of Medical Termination of Pregnancy Act, 1971, if any registered medical practitioner causes any damage by any thing which is in good faith, done or intended to be done under the Medical Termination of Pregnancy Act, 1971, no suit or other legal proceeding can be instituted against him.

CONVENTION ON THE NATIONALITY OF MARRIED WOMEN, 1957

CONVENTION ON THE NATIONALITY OF MARRIED WOMEN, 1957

NATIONALITY OF MARRIED WOMEN

The general assembly of the united nation had adopted the convention ON THE NATIONALITY OF MARRIED WOMEN, 1957, notably, the commission expressed concern regarding the determination of nationality of married women in the context of marriage and its dissolution. Consequently a commission prepared draft of the convention in 1957, which was adopted by general assembly of the united nation and was called the convention of the nationality of women, 1957.

Various committees were undertaken by the contracting parties. Briefly these are as under-

NATIONALITY OF MARRIED WOMEN

1)    Article 1- neither the celebration nor the dissolution of a marriage between one of its nationals and an alien, nor the change of nationality by the husband during marriage, shall automatically, and shall affect the nationality of the wife.

NATIONALITY OF MARRIED WOMEN

2)    Article 2- neither the voluntary acquisition of the nationality of another state nor the renunciations of it nationality by one of its nationals shall prevent the retention of its nationality by the wife of such national.

3)    Article 3- the alien wife of one of its national may, at her request, acquires the nationality of her husband through specially privileged naturalization procedures. However the grant   of such nationality may be subjected to such limitation as may be imposed in the interest of national security or public policy.

NATIONALITY OF MARRIED WOMEN

4)    Article 3,para 2- the present convention shall not be construed as affecting legislation or judicial practice by which the alien of one of its national may, at her request, acquire her husbands nationality as a matter of rights.

Declaration on elimination of discrimination against women,1967

Declaration on elimination of discrimination against women,1967

JUSTICE

On the 7^th December 1967, the General Assembly of the united nation adopted the Declaration on elimination of discrimination against women, 1967.

The preamble of this declaration states that despite the existence of various conventions protection the right of women the discrimination against women continues.  This declaration is pledge to eradicate discrimination against women in any form. It re-affirms the principal of equality of women in world wide scenario.

NO DISCRIMINATION

Article 10 of the Declaration on elimination of discrimination against women, 1967 states that all adequate measure shall be undertaken to ensure equality of married or unmarried women with men in social and economic fields and specifically-

1)    The right without discrimination on grounds of ,marital status or any other ground to receive vocational training to work, to free choice of profession and employment.

2)    The right to equal pay/salary with men.

EQUAL PAY

3)    The right to equal treatment relating to work of similar nature

RIGHT

    4)    The right to receive family allowances on equal terms with men.

With a view to prevent discrimination the status of women is to be regarded with equality in respect of married or unmarried in public employment and consequential family benefits. However, physical incapacity of a woman shall not be treated as discrimination.

Convention on elimination of all forms of discrimination against women, 1979

Convention on elimination of all forms of discrimination against women, 1979

To achieve the provision incorporated under article 1, 2 and 55 of the charter of united nation the declaration on the elimination of discrimination against women, 1967 was adopted by the general assembly of the united nation which consequently paved the pay to the adoption of the convention on the elimination of all forms of discrimination against women, 1979.

By mean of the said convention it was reiterated that the state parties to the international conventions on human right are under the obligation to provide equal right to men and women in civil, political, economical and cultural field. The specialized agencies have to be established in order to achieve the fundamental objective of the conventions and the efforts should be made to root out all forms of discrimination between men and women as discrimination of any kind is a sure obstacle to participation of women with men.  

The state parties to the convention were fully convinced that discrimination is an important factor causing obstruction in the development and advancement of women with men at national and international level. It was realized that that to achieve equality of women with men it is indispensible most in the present scenario.

Civil and political right

Civil and political right

Article 3 to 21 of the Universal declaration of human right deals with the civil and political right. These are the following:

         1)    Right to life, liberty and security of persons (Article 3);

slavery

        2)    Freedom from slavery or servitude (Article 4);

        3)    Prohibition against torture, inhuman or degrading treatment or punishment (Article 5);

      4)    Recognition as a person before the law (Article 6);

equality before law

      5)    Equality before the law and equal protection of law without any discrimination (Article 7); 

       6)    Effective remedy before the national tribunals (Article 8);

       7)    Freedom from arbitrary arrest, detention or exile (Article 9);

      8)    Right to fair and public hearing by an independent and impartial tribunal  (Article 10);

      9)    Presumption of innocence until proved guilty in a public trial with all guarantees necessary for defense in criminal cases (Article 11 Para 1);

10)    Freedom from ex –post facto law (Article 11 Para 2);

11)    Right to privacy, family, home and correspondence (Article 12);

12)    Right to free movement and residence within border of a state (Article 13 Para 1);

13)    Right to leave any country, including his own and to return his country (Article 13 Para 2);

14)    Right to seek and to enjoy in other countries asylum from persecution (Article 14 Para 1); 

15)    Right to nationality (Article 15);

16)    Right to marry and found a family (Article 16);

17)    Right to own property (Article 17);

18)    Right to freedom of thought, conscience and religion (Article 18);

19)    Right to freedom of opinion and expression (Article 19);

peaceful assembly

20)    Right to freedom of peaceful assembly and association  (Article 20);

21)    Right to participate in the government of his country Article 21);

Universal declaration of human right, 1948

Universal declaration of human right, 1948

Human Right

The united nation from very day of its inception from 1945 till date worked to secure women’s legal equality. The united nation has choked out a comprehensive programme by means of various conventions to uplift and develop the status of women in education, political, economical including the position in social life. With formation of commission on human right and commission on then status of women in 1946 and the adoption of universal declaration of human right 1948.  The united nation has also undertaken a massive research study to access the position and status of women throughout the world. It was found that in many part of the world the women have constantly denied equality in law and also in practice. They are compelled to live under male dominated world and are subjected to variety of discrimination and humiliation. As a result the united nation has incorporated a series of treaties and conventions to achieve the equal legal and political status of women throughout the world.

It is pertinent to briefly discuss the achievement of United Nation in the field of women right since 1948. These are:-

1.    1.Universal declaration of human right, 1948;

2.    2.Convention on the political right of women, 1953;

3.    3.Convention on nationality of married women, 1957;

4.    4.Declaration on elimination of discrimination against women, 1967;

5.   5. Convention on the elimination of all form of discrimination against women, 1979;

6.    6.Declaration on the elimination of violence against women, 1993;

7.    7.Optional protocol to the convention on the elimination of discrimination against women, 1999;

8.    8.Commission on status of women

Universal declaration of human right, 1948

The preamble of the universal declaration of human right 1948, declares the universal declaration of human right, as a common standards of achievement for all people and for all Nation, with the end that every individual and every organ of the social order, performance of this announcement always in brain, shall struggle by instruction and humanizing to promote respect for these right and freedom and by progressive measures, national and international , to secure their universal and efficient acknowledgment  and observation both amid the public of associate states themselves and among and among people of territories and their jurisdiction.

Child Right

The preamble clearly declares as the common standards of achievement of all people and all nations. If this declaration is to be construed as a recommendation, a question arises as to whom this recommendation has been made. It is not addressed either to the member or the state or the government. According to KELSON, the declaration is intended to be a common standard of achievement for all people and all nation, and that the declarations is made with the end that every individual and every organ of society- shall strive to thus general assembly recommends to every individual and every organ of society to do something with respect to the human right laid down in the declaration.

How ever in the view of jurist C. BUNCH, -“ human right instrument of women and government  can be made to take gender based violation more seriously by being held accountable for implementation of laws against them.

child right

No discrimination

Thus, preamble of declaration shows the importance and necessity of having faith in the fundamental human right and dignity of individual including men and women. The declaration envisaged the basic principles of human right in most comprehensive manner. The declaration death with civil and political right of men and women in terms of equality. It also deals with social and economic right.

According to article 2 of Universal declaration of human right, “Every one is entitled to all right and freedom set forth in this declaration without discrimination of any kind, such as race color, sex, language, religion, political or other opinion, national or social origin, property or other status. Therefore, no discrimination shall be made on the basis of the political, jurisdictional status of the country  to which a person belongs.