The necessity of law in our life and society is very important because the
law is a strong device for changing anything and the law is supreme in a social
context. So, in every society, equal law is a desirable predicate. In law,
equality of gender is a major issue because most of the time there is
discrimination between individuals on irrational and unreasonable grounds be it
Triple Talaq before the Shah Bano Begum case
or the selection of natural
guardians under the Hindu Minority and Guardianship Act of 1956. When we are
living in a society it is natural that we understand that all are equal when it
comes to the dignity and rights of individuals.
We all have an integral role in
the making of society and see that society moves towards development. Thus,
gender inclusivity in Indian laws is very important to remove discrimination,
especially between men and women from the legal system.
Statement Of Problem
The purpose of this paper will be to analyze Indian Laws for the protection of
women's rights which enables Indian women to be on the same page with Indian
men. The specific research area addressed in this paper is the effect of the
laws which safeguard women in the legal system and the effect it has on society
in its entirety.
The objective behind making this paper is that the information will be of value
in understanding the overall necessity of gender-inclusive laws in India and
their effect on the legal justice system in India. The paper aims at providing
an analysis with the help of contemporary issues.
The research question addressed in this paper is whether there are
gender-inclusive laws in India or not and if they are there then how far they
This paper has been written after extensive reading of several judgments
relating to gender issues. The present paper deals with analytical research and
descriptive study. Data for this research is collected from secondary sources.
Data collection methods are- Books and articles, Magazines, and Journals.
As per different papers available in the literature, there are a few studies
that focus on the trend analysis of legislation in the Indian region. The
studies on Indian legislation present long-term trends. These studies use data
from Supreme Court blogs and judgments. However, not all aspects of justice
systems have been adequately noticed, hence the current study attempts to do
Gender Concerns In India
Gender means those cultures or attitudes that society thinks are appropriate for
men or women. When those expectations are being fulfilled then those are gender
normative. So, when we say men or women in terms of gender then there lies
gender expectations that are created by society. On the other hand, sex refers
to the physical characteristics of a person. The common ground between gender,
law, and society in India is unique because historically Indian society is
strictly patriarchal in nature and the matriarchal system is just designated
only. So, the laws were mostly focused on men's psychology.
But it is said that
if we want to understand the progress of a civilization one has to see the
position of women and children in that society and the treatment which is meted
out to them. Though we believe in equality most of the time the situation
becomes far from reality. Women's issues, rights, and freedom have always been
seen to get secondary status.
Social Status Of Women In The Past
Women in India have confronted several disabilities starting from the Sati
system to the purdah system, lack of education and basic civil rights, etc. So,
it was necessary at the same time to put women at par with men and this is where
during the Indian National Movement, Social Reformation Movements started
becoming popular and also significant in determining the course of Indian
So, the positive impact of Social Reformation Movements during the
Indian National Movement was seen because of the tremendous contributions made
by Raja Ram Mohan Roy, Swami Dayanand Saraswathi, and several other social
reformers like Rabindranath Tagore who believed in the existence of a social
system where women can claim to have the same rights as men. After having fought
a very long battle to protect the rights of women, Indian women started gaining
gradual recognition of their rights in the system.
After the Indian National Movement when India gained its independence, we
adopted the Indian Constitution in 1950. The adoption and enforcement of the
Indian Constitution was a major watershed in the rights of women and in the
feminist movement that India was witnessing at that period of time. Because
under Article 14 the Indian Constitution guaranteed the right to equality to all
citizens of the country.
The spirit of equality that pervaded the supreme law of
the land was sufficient to ensure that Indian women are treated at par with men
not only Indian women but also people with other gender identities had to be
treated as equal because that is what the Constitution the supreme law of the
land guaranteed. Indian women along with the Indian men who believed in the
supreme equality of women with men have had to fight a long and arduous battle
in search of the identity of the status of women.
Special Legislations For Protecting The Social Status Of Women
Bengal Sati Regulation Act, 1829
One of the earliest pieces of legislation which came into the picture for
safeguarding the social status of women was the Bengal Sati Regulation Act, of
1829. Way back in the 19th century we had the then Governor-General Lord William
Cavendish Bentinck who worked tremendously for the protection of the rights of
women who were being emulated on the funeral pyres of their husbands.
Sati as a
system is an institution that had become a very distinct and prominent feature
of the Hindu society then and social reformers like Raja Ram Mohan Roy and Swami Dayanand Saraswathi had waged a serious battle against this particular
institution because it was considered to be degrading towards the health of the
Indian society as a whole. The practice of Sati was a shame on the Indian face
and at the same time, the then Governor-General Lord William Cavendish Bentinck
decided to go for the Bengals Sati Regulation Act in the year 1829.
Hindu Widows' Remarriage Act, 1856
Followed by the Sati Prevention Act we then had the Hindu widow's remarriage act
in the year 1856. The problem of widows in India was phenomenal. They were
exploited physically, emotionally, and financially in all forms that can be
conceived and widows had very unique problems because of the analogous,
conventional, and concurrent practice of child marriages that were happening in
As a consequence of child marriages which affected men and women both, we
got to see that Indian women who were very young in age, sometimes as young as 9
or 10 years old were married off to men who were more than a decade older than
them, sometimes 2 to 3 decades older to them.
As a result of this Indian women
were left either without the consummation of a marriage, sometimes with very
young children immediately after their marriage, and sometimes within a year of
the marriage, we had their husbands dying because obviously the age gap between
the man and the woman was very high. As a consequence of this practice Indian
widows used to face severe problems in terms of social deprivation,
Their social life was hell because of the simple reason that
their husbands were dead and remarriage of widows was not conceivable at that
age because widows were considered to be inauspicious and the idea of piety or
sanctity was attached to the image that they carried severely impacted the
Indian society. So, in 1856 the Hindu widows' remarriage Act was born. One of
the primary contributions of the 1856 enactment was to validate the remarriage
of widows which was still then recognized as illegitimate.
Not only that
children who were born out of such wedlock who were recognized as legitimate
children but by conferring legitimacy on the validity of the marriage as well as
legitimizing the children born out of such wedlock but the Indian government at
that point in time ensured that the remarriage of widows is considered to be a
legal thing and this is where the journey towards the emancipation of widows in
Child Marriage Restraint Act, 1929
In the year of 1929, we did come up with the Child Marriage Restraint Act and
one of the major contributions of the Child Marriage Restraint Act was to ensure
that women are not married off until and unless they received a threshold age.
So here the minimum age of marriage was fixed at 18 for women under Section 2 of
the enactment. As a consequence any parent or guardian who got their women or
daughters married off before they attained the age of 18 was punished or such
actions were made punishable.
The Commission of Sati Prevention Act, 1987
The Bengal Sati Regulation Act was significant because for the first time we had
legislation in the country which defined the term 'Sati' and it was followed by
special legislation which was enacted by the Centre and was called The
Commission of Sati Prevention Act,1987. By the Bengal Sati Regulation Act, Sati
was prohibited in the whole of British India that is in all jurisdictions where
the British could have operated in India. Other punishable acts in connection
with Sati are glorification, abetment, and aiding of Sati.
Women And Matrimonial Laws
Marriage as an institution has played a significant role in the life of a woman.
Marriage, as has also been linked with the social status of women because not
getting married to date, poses a problem for a woman and the worst part about
the whole story is that even after one is married, she is not free from the
clutches of the evils that come with marriage sometimes.
So this means marriage
has been considered to be one of those social institutions which are also born
the maximum problems for a woman because out of marriage or with the institution
of marriage, many other problems are associated which qualify as legal problems
in the life of a woman which means problems like divorce a termination of
marriage, custody battles, the property right to maintenance battles all of
these things are associated with the idea of marriage. In Indian society, for a
woman marriage is a significant institution and at the same time, this is that
institution that is responsible for bringing out the maximum possible number of
legal problems for a woman.
We have an entire body of laws governing the rights of women at the time of
marriage because it was felt by the legislators and there was sufficient
evidence to prove that women have to be protected not only in the institution of
marriage but they have to be protected for all incidents of marriage they have
to be protected in the domestic set up where they are married into and along
with that they need to be protected during the aftermath of marriage if at all a
marriage falls apart. We have an entire domain of personal loss that carries
mixed responses for women and the rights of women. The Indian legislature has
come up with many laws for the purpose of protecting the rights of women.
Dowry Prohibition Act
The first such enactment was passed in the Year 1961 and that was the Dowry
Prohibition Act. In the Act, the term 'dowry' has been defined and any payment
request or acceptance of dowry has been made a punishable offense. It is
necessary to check the background against which the enactment had to come up.
The institution of dowry has for a very long time been associated with the
institution of marriage in India.
Dowry as a system meant that women when they
were married off had to carry certain goods with them in the form of valuable
securities, in the form of property either movable or immovable because they
were being married off into a family which considered her to be an economic
burden. So, in order to set off the economic burden parents of women were and
still are being made to pay a substantial amount of either money or property to
cover up some amount of economic compensation for the fact that a woman was
moving into the household of another man.
The idea was a woman made no economic
contribution to the household so which meant for instance that even when a woman
is rearing the children, teaching the children, or cooking for the family, they
are never considered to be actions or activities which carry any economic
benefits. So obviously the Dowry Prohibition Act was necessary or became
necessary because women met with a lot of matrimonial violence in the country
not only that in their domestic homes, they were sometimes even thrown out of
the picture and they faced a lot of harassment for purpose of bringing less
amount of dowry or more amount of dowry.
Section 304 B of the Indian Penal Code talks about dowry death which is a
significant piece of law because it presumes that if a woman has died under
unnatural circumstances within seven years of a marriage in her matrimonial
home, then the initial presumption is that it is the case of dowry death. Death
should have a certain connection with demands for dowry and other such things as
her being harassed for dowry or her being treated cruelly at the hands of her
Domestic Violence Act, 2005
Another piece of legislation is the Domestic Violence Act, of 2005. The Domestic
Violence act was a necessary feature of the Indian matrimonial home because the
Domestic Violence Act essentially came into the picture for the purpose of
protecting women in their matrimonial households. The concept of domestic
violence in India is something that is probably prevalent in many other
countries as well but in most Indian households, women witnessed violence in the
This is a form of intimate partner violence or violence that
one receives at the end of a spouse or on an intimate partner. The Act is a
progressive piece of legislation that is passed a couple of years back and an
important or salient feature of this particular piece of legislation is that it
not only recognized married relationships or married women as victims but also
recognized live-in relationships.
The law was progressive and also catered to
the changing demands of society by taking into cognizance the fact that women
needed to be protected even when it was a quasi-marital relationship or a
marital relationship that had not been recognized or had been rendered invalid.
A problem however which is associated with the Domestic Violence Act is that it
faces severe non-implementation issues because one of the primary features of
the Domestic Violence Act is that it needs to be implemented by protection
officers who are in charge of giving protection orders to women.
Due to the
non-appointment of protection officers in many parts of India the legislation
has been met with failure on several occasions. When we talk of matrimonial
cruelty and matrimonial issues, we cannot do away with the legal provisions
which are present in the Indian Penal Code. Section 498A of the Indian Penal
Code talks about the protection of women in the matrimonial household. The law
under 498A is targeted towards the protection of married women and is targeted
against the husband and relatives of the husband.
The history of the genesis of
Section 498A is very interesting because it was noted a couple of decades back
that the Indian woman needed the law in her hands when she walked into her
husband's family cause that is the place where she meets new people and we have
several evil practices and institutions like for instance the institution of
dowry where the in-laws have a demand on the family of the woman. To counter
these situations, it was necessary to arm the woman with a weapon the minute she
walked into her matrimonial home this is where Section 498A was conceived of and
Restitution of Conjugal Rights
As we have the concepts of domestic violence, dowry, and even institutions
pertaining to marriage it is at the same time very important to understand
another facet that is related to the social life of a woman when she is married
and this is the concept of restitution of conjugal rights.
The concept of
restitution of conjugal rights has been captured in Hindu law, Islamic law, and
Christian law in every other piece of personal law that we have in India.
Restitution of conjugal rights is a concept that states that women and men, when
they get married are entitled to the conjugal Society of each other which means
the spouse would have a cause of action against his or her spouse if at all the
person abandons conjugal society of the other or deny his conjugal society to
the other on an irrational or unreasonable ground.
The problem with restitution
of conjugal rights is it has often been used as a weapon by men to control many
activities pertaining to women for instance there have been numerous judgments
that have been delivered by the high courts, where women have had to give up
their jobs or change the course of their jobs because the requirements of their
job were such that they had to stay away from the matrimonial home. So,
restitution of conjugal rights as a concept has also been misused in the context
Provisions For Divorce
There are several other provisions for divorce in various personal laws which
have been considered to be extremely direct to the dignity of women. To cite an
example this system of Triple Talaq in Islam has been controversial for a very
long time because as for the system and the way it has been practiced or was
practiced at least on many occasions was that by pronouncing the Talaq three
times, a man could renounce his relationship or give up or terminate his
relationship with a woman no matter how long the marriage had been.
gained a lot of media attention and also created a stir in the country's psyche
when the case of Shah Bano Begum
(1985 AIR 945) came up. In this case, an old
woman who has sacrificed the major years of her life intending a family,
nurturing a family, suddenly found that the doors of a matrimonial home are shut
to her forever when her husband pronounced the Talaq three times on her.
issue is under the Sharia law which is Muslim women upon their divorce are
entitled to maintenance only for the period of iddat. The temporary maintenance
which has been given to them is not always sufficient especially when one takes
into consideration that they show up in long-term marriages which was also the
issue with Shah Bano Begum. Then a piece of legislation came up which brought
about a major amendment in the resolution of the Muslim Marriages Act. Thus, we
have seen that matrimonial laws have not been very conducive to women although
attempts have been made to protect the dignity of the woman on many occasions.
Hindu Minority and Guardianship Act, 1956
Another piece of law is the Hindu Minority and Guardianship Act of 1956. We have
to understand whether the law has been able to equate men with women in the
spirit of Article 14 of the Indian Constitution. Under Section 6 of the Hindu
minority and Guardianship Act, a woman or the mother rather is given the status
of a natural guardian only after the father which means when it is a legitimate
child the law clearly states that the father is the primary natural guardian and
only after the father, the mother is the natural guardian which makes the status
of the mother that of a secondary natural guardian which is questionable.
Because one doesn't see the reason as to why between parents the distinction
between primary and secondary has to be made even if it is being made what is
the rationale behind the making of such demarcations? Interestingly section 6
also mentions that in the case of an illegitimate child the mother will be
considered the primary natural guardian.
This brings many questions to our
minds. For instance, when we talk about a legitimate child why is it that the
father should be considered to be the primary natural guardian but when it gets
down to the level of an illegitimate child, we take the mother for granted as a
primary natural guardian? The inconsistency of the law is apparent whenever
there are greater social responsibilities associated, we try to shift them to
the woman in question.
Hindu Succession Act, 1956
Another piece of legislation is the Hindu Succession Act of 1956. This
20th-century legislation as we can see came into operation six years after the
enactment of the Constitution when the Constitution guaranteed the right to
equality to all its citizens. Initially and interestingly women were denied
equal rights as men when it came down to the distribution of family property
which means that women could not be a part of the coparceners whereas men could
An amendment was made suitably in 2005 only where women were
recognized as coparceners which meant that the institution of the Carta which
gives the status to a person head of a joint family to a person or Hindu
undivided family can also be extended towards women.
Laws At Workplace
Equal Remuneration Act, 1976
It is important to take a look at laws that have been devised to meet the
requirements of women in their workplace. The 1976 enactment of the Equal
Remuneration Act had to be devised because men and women would not treat equally
in their workplace. When it came down to the question of parity of pay, there
were many occasions where a woman was discriminated against on irrational
grounds and was not entitled to the same pay as her male counterpart.
Equal Remuneration Act of 1976, an attempt was made to not discriminate between
men and women in the workplace and to ensure that equal pay is given for the
equal amount of work without any distinction or discrimination on the basis of
Maternity Benefit Act,1961
Apart from that, we have certain special enactments and many occasions which
cater to the special needs of women. For instance, a very special function that
a woman discharges in society is that of being a mother, and the same had to be
recognized at some point in time in Indian laws for women who used to be
employed in enterprises. This is precisely wherein 1961 the Maternity Benefit
Act came in. Under the Act, special provisions are made for women at the
workplace when they are pregnant or with children.
They are entitled to special
regulations in terms of leave or other occasions but when we look at the actual
implementation of the Act there are many real-life instances where women are
either denied promotion or are not given the same benefits that they are
entitled to under the piece of legislation. However, in the letter of the law,
we do grant our women special benefits under the maternity benefit Act 1961.
In the case of Vishakha v. State of Rajasthan
[(1997) 6 SCC 241] where the
Supreme Court laid down guidelines for preventing sexual harassment in the
workplace. The case brought to light the fact that women need special protection
at the workplace and on many occasions, we have made an attempt to come up with
laws for safeguarding them but how far they are being implemented is a different
question altogether though.
Criminal Law And Gender Concerns
In the Indian Penal Code where we talk of substantive criminal law and basic
standards of law demand that there is equality in terms of treating men and
women when it gets down to the commission of crimes or punishment for crimes. It
will be interesting that there are certain provisions made in the Indian Penal
Code which is apparently gender insensitive on many counts.
Though adultery is not an offense now in India, if we look at the previous
adultery laws in India, adultery was an offense that involves a married woman
because for the offense of adultery to be committed one must ensure that the
woman is married. It could not be committed against spinsters for instance.
While the offense involves a married woman, it was interesting to note that it
was a man-to-man offense which means the cause of action could be by the husband
of the woman against the paramour of the woman. That being a man-to-man offense
the question arises what exactly was the role of the woman there?
The law made a
provision that she could not be even punished as in a batter. Essentially the
participation of the woman in the entire Act seemed to be as though something
which is as good as non-existent because probably the legislators felt that for
the offense of adultery being committed, the men had an important role to play
and not women.
This was derogatory to the dignity of a woman because we treated
her as though she is somebody who is not capable of giving consent or she is
somebody who can just be swayed or can be objectified in the entire act. Also,
women were not allowed to prosecute the female paramour of husbands which means
for instance when the ex has sexual intercourse with a woman who is not the wife
of the concerned person, the wife here could not prosecute the female paramour
of the husband.
When it was in connection with adultery, although the nature of
the offense is something that could be committed both by men and women, the
women cannot take advantage of the relevant provisions made for adultery in the
Indian Penal Code and this is something which was obviously not in the interest
Firstly, we do not punish them as participating in the offense of
adultery and that is how we look down upon their status because we conceive of
them as individuals who could not give their consent to the sexual act. Secondly
and most importantly we do not allow them the privilege of prosecuting the
female paramours of their husbands.
Another aspect that came into the picture broadly after the Nirbhaya case[(2017)
6 SCC 1] that is the provision for rape in the Indian Penal Code under Section
375. Initially, the definition of rape included only penile penetration and was
not something that could include oral penetration. However, after a major
amendment was made in the year 2013 to the Indian Penal Code, it is now
recognized that oral penetration was formally not recognized as an act of rape.
Also, it has increased and whitened the ambit of rape and sexual assault and has
come up with several such new offenses which are liable for being penalized like
voyeurism, stalking, etc. However, the fact that we did have to wait for
something as grave and brutal as the Nirbhaya episode does raise eyebrows.
Recognition of marital rape
Section 375 of the IPC does not include marital rape as rape. Recently Supreme
Court recognized marital rape as rape in the context of abortion law. Married
women who conceived because of sexual violence from their husbands will be
treated as unmarried rape victims under the Medical Termination of Pregnancy
Act, of 1971. Also, under the MTP Act only married women who undergo a change in
marital status during pregnancy used to get the benefit of abortion beyond 20
But the SC ruled that unmarried or single women as well who undergo a
change of material circumstances can access abortion beyond 20 weeks. The court
clarified that prohibiting unmarried or single pregnant women whose pregnancies
are between 20 and 24 weeks from accessing abortion while allowing married women
who are in the same circumstances to access abortion would violate article 14
and article 21 of the Constitution.
Though section 377 of the Indian Penal Code is not valid but earlier under this
section homosexuality was a crime. Section 377 of the Indian Penal Code is where
the law approaches gender concerns. In the country today we have transgender,
gay, and lesbian identities and not being recognized, and not only that the
Indian Penal Code penalizes any actions which are sexual in nature and are
confined to gays lesbians, or transgender. It was not only the derecognizing of
homosexuality but it is even more vital that it is trying to criminalize
Prohibition on two-finger test
The Criminal Law Amendment Act, of 2013 created a bar to using a victim's past
sexual history in determining the question of her consent. But there was no
specific provision barring the use of previous sexual history in rape cases.
Section 53A in the Evidence Act, of 1872 was inserted which provides that, in a
prosecution of sexual offenses, where the question of consent is in issue,
evidence of the character of the victim or such person's previous sexual
experience with any person shall not be relevant on the issue of such consent or
the quality of consent.
In the case of Lilu Alias Rajesh & Anr. v. State of
(2013), the court first held that undoubtedly, the two-finger test and
its interpretation violates the right of rape survivors to privacy, physical and
mental integrity, and dignity. But in many places, it continued as before.
Recently State of Jharkhand v. Shailendra Kumar Rai @Pandav Rai case,
Court banned the unscientific two-finger test for rape victims. The court also
strictly said that whoever is involved in conducting the test will be guilty of
Partial Defence Under General Exception
The partial defence under the Indian Penal Code in the chapter on general
exceptions makes grave and sudden provocation but doesn't recognize the battered
woman syndrome. As we know grievance of sudden provocation is something which
men are more prone to because it's a part more of masculine psychology than
feminine psychology. servile women react very differently to a given situation
A battered woman syndrome case came up in the case of Ahluwalia
( Crim LR 63). Women do tend to react in terms of having pent-up emotions
for a very long time and then suddenly reacting in a very violent way to a
stimulus that may have been very harmless. That is one area where we can think
of including the battered woman syndrome as well as a partial defense.
Conclusion And Suggestions
Many of our laws are obsolete and not really very women-friendly. At the same
time, many beneficial legislations have come into the picture to protect women
but how far they are relevant and for what period of time we had to wait for
them to come into existence, needs to be scrutinized. As we know history has
suggested to us that Indian women were buried alive after the death of their
husbands or they were immolated on the funeral pyres which carried their dead
husbands so the practice of Sati extended and the definition of Sati as well
extended towards these activities.
Before something as gruesome as Nirbhaya
takes place, I think it would be better if we have an amendment because it would
be better to have an amendment before 2013 and not wait till something like the
Nirbhaya episode. As the law is an agent of social change, therefore it will
have a significant impact on how the perception of society changes towards them.
If we have laws that are women-friendly obviously it will play a role in
changing our attitude towards them.
So, laws, society, and concerns for gender are intertwined in India. Women have
faced disabilities in the past and therefore they need special protection. The
Indian Constitution enshrines the spirit of equality which means that women must
be treated on par with men. Indian laws have been formulated sometimes to meet
the special requirements of women but most women have had to face discrimination
in connection with the legal system.
The women faced discriminatory treatment in
connection with several laws, particularly in connection with matrimonial and
penal laws. Sometimes special laws are enacted but their benefits are denied to
women due to a lack of implementation facilities. An example of this would be
the Domestic Violence Act of 2005.
On these counts, Indian laws fail to remain
genuinely gender-sensitive and therefore they require reforms. In India with the
connection of Indian laws, we as a society have gone a long way in thinking
about the rights of men thinking about the privileges that can be extended to
them but we need to realize that women need to be treated at par for any society
to survive, to be nurtured, to grow and to develop. This is where the law in
Indian society must also change towards an attitude of sensitivity. We should
understand the concepts of gender justice and the key goals which are to be
achieved in the process.