By Y. Srinivasa Rao, M.A (English Lit.)., B.Ed., LL.M., Research Scholar in Law of Torts., Principal Senior Civil Judge, Tirupati, Andhra Pradesh.
TABLE OF CONTENTS:
- Female Child sex ratio
- Judicial Philosophy
- Important Constitutional Provisions
- Special Laws for Women
- Landmark Judgments for upholding the rights of women
‘No society can progress with men alone‘ – Swamy Vivekananda
Introduction:— In fact, the word “empowerment” is to be understood in the sense that it is a multi-dimensional social process which helps to control the lives of human beings and then it develops power in their lives. Even today, despite several legislations have been enacted for women empowerment, women are being sexually harassed, subjugated, discriminated, and exploited under all the socio-legal and geo-political systems. The role of women in the world transformation process is much significant to understand their status, a fortiori, as is said by Swamy Vivekananda, no society can progress with men alone. But, even in 2021, subordination, subjugation and dependence of women particularly in socio-economic and political life is being continued. It is very essential to give much importance as to women emancipation in socio-economic and political life.
As was observed by the Hon’ble Supreme Court of India, in Voluntary Health Ass. Of Punjab vs Union Of India & Ors. W.P (Civil) No. 349 of 2006, Judgment dated 04-03-2013, Indian society’s discrimination towards female child still exists due to various reasons which has its roots in the social behaviour and prejudices against the female child and, due to the evils of the dowry system, still prevailing in the society, in spite of its prohibition under the Dowry Prohibition Act. The decline in the female child ratio all over the country leads to an irresistible conclusion that the practice of eliminating female foetus by the use of pre-natal diagnostic techniques is widely prevalent in this country. Complaints are many, where at least few of the medical professionals do perform Sex Selective Abortion having full knowledge that the sole reason for abortion is because it is a female foetus. The provisions of the Medical Termination of Pregnancy Act,1971 are also being consciously violated and misused.
Female child sex ratio:
The Hon’ble Apex Court observed that ‘2011 Census of India, published by the Office of the Registrar General and Census Commissioner of India, would show a decline in female child sex ratio in many States of India from 2001-2011. The Annual Report on Registration of Births and Deaths – 2009, published by the Chief Registrar of NCT of Delhi would also indicate a sharp decline in the female sex ratio in almost all the Districts. Above statistics is an indication that the provisions of the Act are not properly and effectively being implemented. There has been no effective supervision or follow up action so as to achieve the object and purpose of the Act. Mushrooming of various Sonography Centres, Genetic Clinics, Genetic Counselling Centres, Genetic Laboratories, Ultrasonic Clinics, Imaging Centres in almost all parts of the country calls for more vigil and attention by the authorities under the Act. But, unfortunately, their functioning is not being properly monitored or supervised by the authorities under the Act or to find out whether they are misusing the pre-natal diagnostic techniques for determination of sex of foetus leading to foeticide’. See. Voluntary Health Ass. Of Punjab vs Union Of India (supra).
To overcome the shackles of orthodox ideologies in the society, during British period itself, several enactments were introduced, such as
in 1830, the Sati Prohibition Act;
in 1856, the Hindu Widows Remarriage Act (Of course, it was repealed in the year 1983);
in 1872, the Special Marriage Act;
in 1929, the Child Marriage Restraint Act;
in 1937, the Hindu Women’s Right to Property Act (Now, repealed) ;
in 1956, the Hindu Succession Act; ( This Act was replaced after repealing the Hindu Women’s Right to Property Act,1937);
in 1939, the Dissolution of Muslim Marriage Act.
These special legislations brought tremendous change in the unequal socioeconomic status of women. Even today, the Indian Government and the Indian Judiciary have been taking effective steps for giving a dignified status to women in the Society and to protect the rights of women and also to achieve the constitutional goals.
Important Constitutional Provisions:—
Article 14 (Equality before law):- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
This Article enshrines that the State shall not deny to any person the equality before the law and equal protection of laws with in the territory of India.
Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth):- Articles 15 of the Indian Constituion speaks about prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. Article 15 (1) It prohibits the State not to discriminate against any citizen on the grounds only of religion, race, caste, sex, place of birth pr any of them. Article 15(3) permits the State to make special provisions for women and children. It is pertinent to note that Article 15(3) of the Indian Constitution allows the state to make special laws for women empowerment. Article 15 (4) of the Constitution says that nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. The Parliament wanted to prevent the same and enacted the Pre- Conception and Pre-Natal Diagnostic Techniques (Prohibition on Sex- Selection) Act, 1994 (for short ‘the Act’) which has its roots in Article 15 (2) of the Constitution of India. The Act is a welfare legislation. The Parliament was fully conscious of the fact that the increasing imbalance between men and women leads to increased crime against women, trafficking, sexual assault, polygamy etc. Unfortunately, facts reveal that perpetrators of the crime also belong to the educated middle class and often they do not perceive the gravity of the crime. See. Voluntary Health Ass. Of Punjab’s case (supra).
Article 16 (Equality of opportunity in matters of public employment):- This Article provides that there shall be equality of opportunity for all citizens and no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State.
Article 39(a) :- This provision provides that the state in particular direct its policy towards securing that citizen, men and women equally, have the right to an adequate means of livelihood.
Article 39( Certain principles of policy to be followed by the State):— The State shall, in particular, direct its policy towards securing – (a) that the citizens, men and women equally, have the right to an adequate means to livelihood; See. Article 39 (a). Article 39 (e) provides that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter vocations unsuited to their age or strength.
Article 51(A)(e):- It provides that it will be the duty of every citizen to renounce practices derogatory to the dignity of women. Article 51 (A) says about fundamental duties wheein Article 51-A (e) says that it shall be the duty of every citizen of India to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women.
73rd and 74th Constitutional amendments:— These Amendments provide for reservation of seats (at least ⅓) in the local bodies of Panchayats and Municipalities for women.
84th Constitutional Amendment:- It relates to reserve 33 % seats in Parliament and State Legislatures.
These special provisions are incorporated in the Constitution of India for empowerment of women.
Special Laws for Women :—
The Hindu Marriage Act 1955:- This enactment regulates the institution of marriage and other aspects of personal life among Hindus. The main object of this Act is to to secure the rights of marriage for the spouses who are Hindu and the spouses are bound under the sacred bond of marriage and that this Act was introduced to overcome various consequences which were prevalent due to immature Hindu law for marriage under British period. . In Rameshchandra Daga v. Rameshwari Daga (AIR 2005 SC 422), while interpreting section 9 to 14 and 25 of the Act, it was oberved that The wife’s claim to maintenance necessarily has then to be agitated under the Hindu Adoptions and Maintenance Act, 1956 which is a legislative measure later in point of time than the Hindu Marriage Act, 1955, though part of the same socio-legal scheme revolutionizing the law applicable to Hindus.
The Hindu Succession Act, 1956:–
This Act provides a comprehensive system of inheritance and applies, inter alia, to persons governed by the Mitakshara and Dayabhaga schools. Besides that it applies to those governed previously by the Murumakkattayam, Aliyasantana and Nambudri laws. This enactment is applicable to every 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, Pararthana or Arya Samaj; or to any person who is Buddhist, Jain or Sikh by religion; or to any other person who is not a Muslim, Christian, Parsi or Jew by religion. However, in the case of a testamentary disposition, this Act does not apply and the interest of the deceased is governed by the Indian Succession Act, 1925.
In order to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have, section 6 of the Act was amended in 2005. See. the 174th Report of the Law Commission of India on “Property Rights of Women: Proposed Reform under the Hindu Law”. This new amendment to section 6 of the Act changed the traditional notion of a coparcenary by bringing within its fold daughters as well.
The Hindu Adoptions and Maintenance Act, 1956:- The only enactment which regulates adoption in India is the Hindu Adoptions and Maintenance Act, 1956 and it is applicable to Hindus only. Surrogacy is a new concept of law which is still to be developed to Indian Legal System. Section 5 of the Act stipulates that all adoptions should be made in compliance with the provisions of this Act andif any adoption is made in contravention of these provisions, it shall be void.
The Hindu Minority and Guardianship Act, 1956:-
In fact, this Act of 1956 was enacted in 1956 taking into consideration of the socio-economic conditions prevailing in the country. The contribution of parents to a child is explained in the Puranas and Manusmriti. In 257th Report of the Law Commission of India, the subject of ‘Reforms in Guardianship and Custody Laws in India’, it was suggested to amend Section 6 to bring it tune with the tenet of equality enshrined in Article 14 of the Indian Constitution.
The Dowry Prohibition Act, 1961:-
The Parliament in its wisdom enacted the Dowry Prohibition Act,1961 (Act No.28 of 1961). The objects and reasons were set out as follows :-
“The object of this Bill is to prohibit the evil practice of giving and taking of dowry. This question has been engaging the attention of the Government for some time past, and one of the methods by which this problem, which is essentially a social one, was sought to be tackled was by the conferment of improved property rights on women by the Hindu Succession Act, 1956. It is, however, felt that a law which makes the practice punishable and at the same time ensures that any dowry, if given does ensure for the benefit of the wife will go a long way to educating public opinion and to the eradication of this evil. There has also been a persistent demand for such a law both in and outside Parliament. Hence, the present Bill. It, however, takes care to exclude presents in the form of clothes, ornaments, etc., which are customary at marriages, provided the value thereof does not exceed Rs.2,000. Such a provision appears to be necessary to make the law workable.”
The Act came into force on 1.7.1961. But it was found that even an enacted law did not help in eradicating or at least lessening the menace. The Supreme Court had occasion to say in Shri Bhagwant Singh v. Commissioner of Police, Delhi, that :
“The greed for dowry, and indeed the dowry system as an institution, calls for the severest condemnation. It is evident that legislative measures such as the Dowry Prohibition Act have not met with the success for which they were designed.”
This led to the Criminal Law (Second Amendment) Act bringing in stringent criminal provisions to combat the menace and to some amendments in the Dowry Prohibition Act itself giving it more teeth. The objects and reasons for the amendment by Act 63 of 1984, were set down as follows:-
“The evil of dowry system has been a matter of serious concern to every one in view of its ever-increasing and disturbing proportions. The legislation on the subject enacted by Parliament, i.e., the Dowry Prohibition Act 1961 and the far- reaching amendments which have been made to the Act by a number of States during the seventies have not succeeded in containing the evil. As pointed out by the Committee on the Status of Women in India, the educated youth is grossly insensitive to the evil of dowry and unashamedly contributes to its perpetuation. Government has been making various efforts to deal with the problem. In addition to issuing instructions to the State Governments and Union Territory administrations with regard to the making of thorough and compulsory investigations into cases of dowry deaths and stepping up anti- dowry publicity. Government referred the whole matter for consideration by a Joint Committee of both the House of Parliament. The Committee went into the whole matter in great depth and its proceedings have helped in no small measure in focusing the attention of the public and rousing the consciousness of the public against this evil.”
There was a further amendment to the Act by Act 43 of 1986 making the provisions more stringent and enhancing the punishment for taking or abetting the taking of dowry. In spite of all this, it was seen that the enforcement of the provisions of the Act was thoroughly unsatisfactory and this is reflected by the filing of this Writ Petition in this Court, in public interest. See. In Re: Enforcement And Implementation of Dowry Prohibition Act, 1961, AIR 2005 SC 2375, 2005 (2) BLJR 1285, 2005 (5) BomCR 198, 2005 CriLJ 2598, 119 (2005) DLT 452 SC, I (2005) DMC 805 SC, 2005 (3) JCR 170 SC, JT 2005 (5) SC 71, (2005) 4 SCC 565, 2005 (2) UJ 880 SC.
The Dissolution of Muslim Marriages Act, 1939:– This Act is an important enactment among various legislative measures dealing with Muslim personal law. Firstly, it was passed by the central legislature of British India, the Act is now applicable in various parts of all the three countries constituting Indian sub-continent (with certain changes in Pakistan and Bangladesh). The legislative method known as takhyur (eclectic choice) by means of which this law was originally proposed to be enacted was the same as adopted for the reform of Muslim family laws in a large number ofWest Asian countries afterwards. This enactment came into force w.e.f.17-03-1939 and it provides provisions of Muslim law as to suits for dissolution ofmarriage by women. The Act is, however, not a codification of the Muslim law relating to dissolution of marriagesby act of parties, namely talaq, khula and mubaraa. It enumerates the grounds on which the wife can obtain judicial divorce. See, “Statement of Objects and Reasons of the Act” (VIM of 1939) in Gazette of India Part V, 1938 at 36.See. Article reported in 45 JILI (2003) 484, “Understanding the Islamic Law ofDivorce” by Shri Furqan Ahmad.
The Muslim Women (Protection of Right on Divorce) Act, 1986:-
Although this Act was introduced to protect the rights of Muslim women on Divorce, it is being criticised The Act on the following grounds:- 1. It fails to embody accurately Muslim law; 2. This Act fails to provide a realistic and practical alternative solution to the genuine hardships faced by divorced Muslim women; 3. It is ambiguously and ineptly drafted; 4. It opens a Pandora’s box by establishing a dangerous and retrogressive precedent; and 5. It is prima facie unconstitutional. See. Article reported in 28 JILI (1986) 364.
The Protection of Women from Domestic Violence Act, 2005:-
The Hon’ble Apex Court in the case of Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165, it was observed as infra:
“16. A cursory reading of the statement of objectsand reasons makes it clear that the phenomenon ofdomestic violence against women is widely prevalent and needs redressal. Whereas criminal law does offer some redressal, civil law does not address this phenomenon in its entirety. The idea therefore is to provide various innovative remedies in favour of women who suffer from domestic violence, against the perpetrators of such violence;”
The Supreme Court, in Krishna Bhattacharjee v. Sarathi Choudhury, (2016) 2 SCC 705, it was held that the 2005 Act has been legislated, as its Preamble would reflect, to provide for more effective protection of the rights of the women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. The 2005 Act is a detailed Act. The dictionary clause of the 2005 Act, which we shall advert to slightly at a later stage, is in a broader spectrum. The definition of “domestic violence” covers a range ofviolence which takes within its sweep “economic abuse” and the term “economic abuse” as the provision would show, has many facets.
Landmark Judgments for upholding the rights of women:—
V. Tulasamma v. V. Seslia Reddi, (1977) 3 SCC 99:— It was held that Section 14 (1) and the Explanation thereto have been couched in the widest possible terms. and must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio-economic ends, sought to be achieved by this long needed legislation. (3) Sub-section (2) of s. 14 is in the nature of a proviso and has a field of its own without interfering with the operation of s. 14 (1)materially. The proviso. should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by s.14 (1) or in a way so as to become totally inconsistent with the main provision.
C..B. Muthamma v. Union of India , AIR 1979 SC 1868 :— It was held that “If a married man has a right, a married woman, other things being equal, stands on no worse footing. This misogynous posture is a hangover of the masculine culture of manacling the weaker sex forgetting how our struggle for national freedom was also a battle against woman’s thraldom. Freedom is indivisible, so is Justice. That our founding faith enshrined in Articles 14 and 16 should have been tragically ignored vis-a-vis half of India’s humanity, viz., our women, is a sad reflection on the distance between Constitution in the book and Law in Action. And if the Executive as the surrogate of Parliament, makes rules in the teeth of Part III, especially when high political office, even diplomatic assignment has been filled by women, the inference of die-hard allergy to gender parity is inevitable.” It was further held that “We do not mean to universalise or dogmatise that men and women are equal in all occupations and all situations and do not exclude the need to pragmatise where the requirements of particular employment, the sensitivities of sex or the peculiarities of societal sectors or the handicaps of either sex may compel selectivity. But save where the differentiation is demonstrable, the rule of equality must govern. This creed of our Constitution has at last told on our governmental mentation, perhaps partly pressured by the pendency of this very writ petition. In the counter affidavit, it is stated that Rule 18(4) (referred to earlier) has been deleted on November 12, 1973. And, likewise, the Central Government’s affidavit avers that Rule 8(2) is on its way to oblivion since its deletion is being gazetted. Better late than never. At any rate, we are relieved of the need to scrutinise or strike down these rules.”
Municipal Corporation of Delhi v. Female Workers, AIR 2000 SC 1274:—
It was held that “A just social order can be achieved only when inequalities are obliterated and everyone is provided what is legally due. Women who constitute almost half of the segment of our society have to be honoured and treated with dignity at places where they work to earn their livelihood. Whatever be the nature of their duties, their avocation and the place where they work; they must be provided all the facilities to which they are entitled. To become a mother is the most natural phenomena in the life of a woman. Whatever is needed to facilitate the birth of child to a woman who is in service, the employer has to be considerate and sympathetic towards her and must realise the physical difficulties which a working woman would face in performing her duties at the work place while carrying a baby in the womb or while rearing up the child after birth. The Maternity Benefit Act, 1961 aims to provide all these facilities to a working woman in a dignified manner so that she may overcome the state of motherhood honourably, peaceably, undeterred by the fear of being victimised for forced absence during the pre or post-natal period.”
Vishaka v. State of Rajasthan, AIR 1997 SC 3011:—
In this case, Supreme Court prescribed GUIDELINES and Norms . It was held that having regard to the definition of ‘human rights’ in Section 2 (d) of the Protection of Human Rights Act, 1993, TAKING NOTE of the fact that the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places and that enactment of such legislation will take considerable time, It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women: See full text of this ruling to know the Guidelines and Norms.
Bodhisaftwa v. Ms. Subhra Chakraborty, AIR 1996 SC 622:—
It was observed as follows: “In India also the rule of “Corroboration of the Prosecutrix” has undergone a change through statutory amendments as also through decisions of this Court.
In Staye of Himachal Pradesh vs. Raghubir Singh , 1993(2) SCC 622, this Court observed as under :-
“There is no legal compulsion to look for corroboration of the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate her veracity. In the present case the evidence of the prosecutrix is found to be reliable and trustworthy. No corroboration was required to be looked for, though enough was available on the record. The medical evidence provided sufficient corroboration.”
In State of Karnataka vs. Mahabaleshwar Gourya Naik AIR 1992 SC 2043 = 1992 Suppl. (3) SCC 179, the Court went to the extent of laying down that even if the victim of rape is not available to give evidence on account of her having committed suicide, the prosecution case cannot be thrown away over board. In such a case, the non-availability of the victim will not be fatal and the Court can record a conviction on the basis of the available evidence brought on record by the prosecution.
In spite of the decision of this Court that (depending upon the circumstances of the case) corroboration of the prosecutrix was not necessary, the cases continued to end in acquittal on account of mishandling of the crime by the police and the invocation of the theory of “consent” by the Courts who tried the offence. To overcome this difficulty, the legislature intervened and introduced Section 114-A in the Evidence Act by Act No. 43 of 1983 reading as under:-
114-A. Presumption as to absence of consent in certain prosecutions for rape.- In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) or sub-section (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.” “
Centre for Enquiry in to Health and Allied Themes (CEHAT)v. Union of India, (2001) 5 SCC 577:—
It was observed that for controlling the situation, the Parliament in its wisdom enacted the Pre-natal Diagonstic Techniques (Regulation and Prevention of Misuse) Act, 1994 (hereinafter referred to as “the PNDT Act”). The Preamble, inter alia, provides that the object of the Act is to prevent the misuse of such techniques for the purpose of pre-natal sex determination leading to female feoticide and for matters connected therewith or incidental thereto. The Act came into force from 1st January, 1996.
It is apparent that to a large extent, the PNDT Act is not implemented by the Central Government or by the State Governments. Hence, the petitioners are required to approach this Court under Article 32 of the Constitution of India. One of the petitioners is the Centre for Enquiry Into Health and Allied Themes (CEHAT) which is a research center of Anusandhan Trust based in Pune and Mumbai. Second petitioner is Mahila Sarvangeen Utkarsh Mandal (MASUM) based in Pune and Maharashtra and the third petitioner is Dr. Sabu M. Georges who is having experience and technical knowledge in the field. After filing of this petition, this Court issued notices to the concerned parties on 9.5.2000. It took nearly one year for the various States to file their affidavits in reply/written submissions. Prima facie it appears that despite the PNDT Act being enacted by the Parliament five years back, neither the State Governments nor the Central Government has taken appropriate actions for its implementation.
Seema v. Askwani Kumar, (2006) 2 SCC 578:- It was held as follows:
“Accordingly, we are of the view that marriages of all persons who are citizens of India belonging to various religions should be made compulsorily registrable in their respective States, where the marriage is solemnized.
Accordingly, we direct the States and the Central Government to take the following steps:
(i) The procedure for registration should be notified by respective States within three months from today. This can be done by amending the existing Rules, if any, or by framing new Rules. However, objections from members of the public shall be invited before bringing the said Rules into force. In this connection, due publicity shall be given by the States and the matter shall be kept open for objections for a period of one month from the date of advertisement inviting objections. On the expiry of the said period, the States shall issue appropriate notification bringing the Rules into force.
(ii) The officer appointed under the said Rules of the States shall be duly authorized to register the marriages. The age, marital status (unmarried, divorcee) shall be clearly stated. The consequence of non-registration of marriages or for filing false declaration shall also be provided for in the said Rules.
Needless to add that the object of the said Rules shall be to carry out the directions of this Court.
(iii) As and when the Central Government enacts a comprehensive statute, the same shall be placed before this Court for scrutiny.
(iv) Learned counsel for various States and Union Territories shall ensure that the directions given herein are carried out immediately.“
Manjula v. K.R. Mahesh , (2006) 5 SCC 461 :—
It was held as follows: “Marriages are made in heaven, is an adage. A bride leaves the parental home for the matrimonial home, leaving behind sweet memories there with a hope that she will see a new world full of love in her groom’s house. She leaves behind not only her memories, but also her surname, gotra and maidenhood. She expects not only to be a daughter-in-law, but a daughter in fact. But the large number of cases flooding the courts with allegations of torture, harassment for dowry, saddens one’s heart. Where lies the fault? Is it lack of communication or adjustment? Or, is it the victory of greed and materialistic needs over love, affection and human values? The answer is difficult to find. There is another angle involved. The evil design to harass the in-laws over petty things by making accusations of dowry demand and torture. In such cases, the vital question again is whether laws which are really dynamic instruments fashioned by society for the purpose of achieving human relations by elimination of social tensions and conflicts have achieved the intended objectives or are being used as weapons of an assassin to harass and humiliate others instead of being used as a shield against injustice.”
Lata Singh v. State of UP , (2006) 5 SCC 475:—
It was observed as infra: “The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter- religious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law. We sometimes hear of `honour’ killings of such persons who undergo inter-caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism.”
Sarla Mudgal v. Union of India, AIR 1995 SC 1531:—
It was held as infra: “When Constitution was framed with secularism as its ideal and goal, the consensus and conviction to be one, socially, found its expression in Article 44 of the Constitution. But religious freedom, the basic foundation of secularism, was guaranteed by Articles 25 to 28 of the Constitution. Article 25 is very widely worded. It guarantees all persons, not only freedom of conscience but the right to profess, practice and propagate religion. What is religion? Any faith or belief. The Court has expanded religious liberty in its various phases guaranteed by the Constitution and extended it to practices and even external overt acts of the individual. Religion is more than mere matter of faith. The Constitution by guaranteeing freedom of conscience ensured inner aspects of religious belief. And external expression of it were protected by guaranteeing right to freely, practice and propagate religion. Reading and reciting holy scriptures, for instance, Ramayana or Quran or Bible or Guru Granth Sahib is as much a part of religion as offering food to deity by a Hindu or bathing the idol or dressing him and going to a temple, mosque, church or gurudwara.
Marriage, inheritance, divorce, conversion are as much religious in nature and content as any other belief or faith. Going round the fire seven rounds or giving consent before Qazi are as much matter of faith and conscience as the worship itself. When a Hindu becomes convert by reciting Kalma or a Mulsim becomes Hindu by reciting certain Mantras it is a matter of belief and conscience. Some of these practices observed by members of one religion may appear to be excessive and even violative of human rights to members of another. But these are matters of faith. Reason and logic have little role to play. The sentiments and emotions have to be cooled and tempered by sincere effort. But today there is no Raja Ram Mohan Rai who single handed brought about that atmoophere which paved the way for Sati abolition. Nor is a statesman of the stature of Pt. Nehru who could pilot through, successfully, the Hindu Succession Act and Hindu Marriage Act revolutionising the customary Hindu Law. The desirability of uniform Code can hardly be doubted. But it can concretize only when social climate is properly built up by elite of the society, statesmen amongst leaders who instead of gaining personal mileage rise above and awaken the masses to accept the change.“
Pratibha Rani v. Suraj Kumar, AIR 1985 SC 628:—
It was observed that “It is well-setted that from a legal contract, or violation of direction of law, the entrustment of property or dominion over property are the per- requisites for the applicability of the aforesaid provision. Once it is held as above, that property within the matrimonial home is in the joint possession and custody (despite rights of the individual ownership therein) then these very per-requisites of entrustment or dominion over property cannot be easily satisfied betwixt the spouses inter se. It is indeed well-settled that the very concept of the jointness of possession and custody would rule out the entrustment or dominion over property betwixt such joint custodians. In line with the concept of joint ownership where the possession of one joint owner is deemed to be the possession of all, the analogy,is to be extended that existence of the property within the matrimonial home rises a presumption that both the husband the wife are in possession thereof jointly and not that each one has entrusted his exclusive property to the custody of other. Subscribing to the latter view would be both overly hypertechnical and subversive of the very concept of marriage, the matrimonial home and the inevitable mutual trust which conjugality necessarily involves.””
Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 238:—
It was held that “ Obviously, a rigid insistence of strict statutory interpretation may not be conducive for the growth of the child, and welfare being the predominant criteria, it would be a plain exercise of judicial power of interpreting the law so as to be otherwise conducive to a fuller and better development and gro wth of the child. 16. Incidentally the Constitution of India has introduced an equality code prohibiting discrimination on the ground of sex and having due regard to such a mandate in the Constitution, is it justifiable to decry the rights of the mother to be declared a natural guardian or have the father as a preferred guardian? Ms. Indira Jaisingh answers it with an emphatic `no’ and contended that the statute in question covering this aspect of the Personal law has used the expression `after’ in Section 6 (a) but the same cannot run counter to the constitutional safeguards of gender justice and as such cannot but be termed to be void and ultravires the Constitution. 17. Be it noted here that the expressions `guardian’ and `natural guardian’ have been given statutory meanings as appears from Section 4 (b) wherein guardian is said to mean a person having the care of the person of a minor or his property and includes: (i) natural guardian; (ii) a guardian appointed by the will of the minor’s father or mother; (iii) a guardian appointed or declared by court, and
Mohammed Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945 :— It was observed that “In Mulla’s principles of Mahomedan Law (18th Edition, page 308), Mahr or Dower is defined in paragraph 285 as “a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage.” Dr. Paras Diwan in his book, “Muslim Law in Modern India” (1982 Edition, page 60), criticises this definition on the ground that Mahr is not payable “in consideration of marriage” but is an obligation imposed by law on the husband as a mark of respect for the wife, as is evident from the fact that non-specification of Mahr at the time of marriage does not affect the validity of the marriage. We need not enter into this controversy and indeed, Mulla`s book itself contains the further statement at page 308 that the word ‘consideration’ is not used in the sense in which it is used in the Contract Act and that under the Mohammedan Law, Dower is an obligation imposed upon the husband as a mark of respect for the wife. We are concerned to find is whether Mahr is an amount payable by the husband to the wife on divorce. Some confusion is caused by the fact that, under the Muslim Personal Law, the amount of Mahr is usually split into two parts, one of which is called “prompt”, which is payable on demand, and the other is called “deferred “, which is payable on the dissolution of the marriage by death or by divorce. But, the tact that deferred Mahr is payable at the time of the dissolution of marriage, cannot justify the conclusion that it is payable ‘on divorce’. Even assuming that, in a given case, the entire amount of Mahr is of the deferred variety payable on the dissolution of marriage by divorce, it cannot be said that it is an amount which is payable on divorce. Divorce may be a convenient or identifiable point of time at which the deferred amount has to be paid by the husband to the wife. But, the payment of the amount is not occasioned by the divorce, which is what is meant by the expression ‘on divorce’, which occurs in section 127 (3) (b) of the Code. If Mahr is an amount which the wife is entitled to receive from the husband hl consideration of the marriage, that is the very opposite of the amount being payable in consideration of divorce. Divorce dissolves the Marriage. Therefore no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of divorce. The alternative premise that Mahr is an obligation imposed upon the husband as a mark of respect for the wife, is wholly detrimental to the stance that it is an amount payable to the wife on divorce.A man may marry a woman for love, looks, learning or nothing at all. And. he may settle a sum upon her as a mark of respect for her. But he does not divorce her as a mark of respect. Therefore, a sum payable to the wife out of respect cannot be a sum payable ‘on divorce’.”
Danial Latifi v. Union of India, (2001) 7 SCC 740:—
It was held as follows: While upholding the validity of the Act, we may sum up our conclusions:
1) a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3 (1) (a) of the Act.
2) Liability of Muslim husband to his divorced wife arising under Section 3 (1) (a) of the Act to pay maintenance is not confined to iddat period.
3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance.
4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.“
Yusuf v. Sowramma, AIR 1971 Kerala 261:—
It was observed that “One of the serious apprehensions judges have voiced, if the view accepted in AIR 1950 Sind 8 were to be adopted, is that the women may be tempted to claim divorce by their own delinquency and family ties may become tenuous and snap. Such a fear is misplaced has been neatly expressed by Bertrand Russel in his “Marriage and Morals”.
“One of the most curious things about divorce is the difference which has often existed between law and custom. The easiest divorce laws by no means always produce the greatest number of divorces …………… I think this distinction between law and custom is important, for while I favour a somewhat lenient law on the subject, there are to my mind, so long as the biparental family persists as the norm, strong reasons why custom should be against divorce, except in somewhat extreme cases. I take this view because I regard marriage not primarily as a sexual partnership, but above all as an undertaking to co-operate in the procreation and rearing of children.”
Shamim Ara v. State of UP,. (2002) 7 SCC 518:—
Mulla on Principles of Mahomedan Law (Nineteenth Edition, 1990) states vide para 310:- “310. Talak may be oral or in writing.__ A talak may be effected (1) orally (by spoken words) or (2) by a written document called a talaknama (d).
Triple Talaq: (Shayara Bano v. Union of India, (2017) 9 SCC 1):-
Now , the one of the salient features of the Act, 2019 is that the pronouncement of triple talaq by a Muslim husband to his wife, by words, either spoken or written or in electronic form including social media or in any other manner whatsoever, shall be void and illegal. Now, the Hon’ble five-judge bench of Supreme Court struck down the practice of Triple Talaq. See. Shayara Bano v. Union of India, (2017) 9 SCC 1.
Conclusion:— Four main issues such as upliftment of women status, conferment of equality, avoidance of injustice to women, safety of women from violence are crucial aspects for consideration for women empowerment. The Legislature and the Judiciary have been performing their functions effectively to uplift the status of women in the society. But, there are problems in implementation of legislative policies and following the guidelines of superior judiciary to protect the rights of women. For instance, although there is specific legislation and clear guidelines of Judiciary, evil practices like demand for dowry is still existed in the society. Awareness to people about gender justice and women empowerment is very essential. Moral values and ethics are to be respected and followed. For the effective implementation of laws, awareness programmes are to be conducted. In Voluntary Health Ass. Of Punjab vs Union Of India (supra), the Hon’ble Apex Court opines that no awareness campaign can ever be complete unless there is real focus on the prowess of women and the need for women empowerment. Steps should be taken by the State Governments and the Union Territories to educate the people of the necessity of implementing the provisions of the Acts which are specially enacted for protection of rights of women and to follow the guidelines given the Indian Judiciary, for women empowerment, by conducting workshops as well as awareness camps at the State and District levels.