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Frequently Asked Questions (FAQ)
FAQ Relating to Women's Rights
| (i) |
Girl
Child's Right to Birth and Survival: |
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Q. 1. Is it an offence to remove foetus or commit acts
leading to infanticide?
A.Yes. The
Indian Penal Code, 1860, the Medical Termination
of Pregnancy (MTP) Act, 1971, the Prenatal Diagnostic Techniques (Regulation
and Prevention of Misuse) Act, 1994 prohibit illegal acts leading to female
foeticide and infanticide and provides punishment to the perpetrators. The MTP
Act permits medical termination of pregnancy by a Registered Medical
Practitioner (RMP) in limited circumstances such as, danger to the mother's
life; substantial risk to the child being born; where pregnancy is the result
of rape; failure of contraception etc.
Q. 2. Is it compulsory to obtain permission before
undertaking Medical Termination of Pregnancy?
A. Yes.
Under section 3 of the MTP Act it is compulsory to obtain the permission of the
pregnant woman, except in cases where the pregnant woman is a minor or a lunatic,
in which, guardian's consent is required.
Q.3.
Is it compulsory to get the 'Birth' and 'Deaths' registered?
A. Yes. It is compulsory for each and every one of us to get the
'birth' and 'death' registered with the Registrar, Births and Deaths in accordance
with the provisions of the Registration of Births and Deaths Act, 1969. For
example the 'birth registration' certificate is compulsory for admitting a
child in school and 'death' registration certificate is necessary for claiming
lawful dues such as pension, insurance etc. If anyone fails to register the
births on time, they can still approach the Registrar or obtain an affidavit
from the Magistrate in this regard. |
| (ii) |
Right to Health Care: |
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Q. 4. Is it obligatory on the part of the doctors to provide
, immediate medical aid?
A. Yes. In accordance with the Supreme Court directions in Pt.
Parmanand Katara's case (AIR 1989 SC 20) it is obligatory for every doctor
be it in Government or private hospital to extend immediate medical aid to the
accident victims without insisting on Police Report/Records. Besides, the Court
in series of cases held the right to health care a fundamental right of
citizens under Article 21 of the Constitution of India. |
| (iii) |
Protection to Women at Workplace: |
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Q. 5. Will it be permissible under the GOI Rules to seek
posting of husband and wife at same station?
A.
Yes. The
Government of India Policy (see, O.M.No.14034/l0/86-Estt.(D) dated 5th June,
1986) provides that "as far as possible and within the constraints of
administrative feasibility, the husband and wife should be posted at the same
station to enable them to lead a normal family life and to ensure the education
and welfare of their children."
Q. 6. Do persons belonging to SC/ST entitled to reservations
in promotions in employment?
A. Yes. In pursuance of the recently enacted Constitution
(Eighty-fifth Amendment) Act, 2002 persons belonging to SC/ST in employment are
entitled to reservations in promotions as provided under Article 16 (4A) of the
Constitution.
Q. 7. Do persons with disabilities entitled to 3 percent
reservation of seats in employment?
A. Yes.
Under the provisions of the Persons with Disabilities Equal Opportunities,
(protection of Rights and Full Participation) Act, 1995 the persons with
disabilities are entitled to reservations in education and employment.
Q. 8. Are there any age relaxations and reservations for
widows, divorced women etc.?
The Government of
India rules provide that "widows, divorced women and women judicially
separated from their husbands who are not remarried are granted age relaxations
in pursuing employment up to 35 years (up to 40 years for members of Scheduled
Castes/Scheduled Tribes).
Q.
9. Whether a woman working on daily wages entitled to Maternity Benefits?
A. Yes. According to Central Civil Service Rules formulated in
accordance with the Maternity Benefits Act, 1961 the female Government
employees are entitled to maternity leave for a period of 135 days from the
date of its commencement (in Punjab and Haryana women are entitled to maternity
leave for 180 days). The Supreme Court recently in Municipal Corporation
o/Delhi case (JT 2000 (3) SC 13), gave directions to the Government to
extend these benefits also to women employees working on daily wages (muster
roll).
Q. 10. Is eve-teasing
an offence?
A. Yes.
Under section 509 of the Indian Penal Code, 1860 eve-teasing is a punishable
offence. Few States are taking measures to make this law more stringent and
non-bailable. Besides, section 354 of IPC provides punishment for the acts
relating to outraging the modesty of a woman. |
| (iv) |
Sexual Harassment of
Women at Workplace |
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Q.
11. Is there any law to protect women from 'sexual harassment' at workplaces?
A. Yes. The Supreme Court guidelines in Vishaka case (1997 (6)
SCC 240) would be binding and enforceable in law until suitable legislation is
enacted to occupy the field. (The text of the Supreme Court guidelines is given
at page 36).
Q.12.
What acts connote 'Sexual Harassment of Women' at workplace?
A. Such unwelcome sexually determined behaviour (whether directly or by
implication) as:
• physical contact and advances;
• a demand or request for sexual favours;
• sexually coloured remarks;
• showing pornography;
• any other unwelcome physical, verbal or on-verbal conduct of sexual nature.
Q. 12. What is the
sanctity and applicability of these guidelines?
A. These guidelines are applicable to all the establishments
where women work. Under Article 142 of the Constitution of India any decree so
passed or order so made by the Supreme Court shall be enforceable through out
the territory of India in such manner as may be prescribed by or under any law
made by Parliament and until provision in that behalf is so made, in such
manner as the President my by order prescribe. Further, Article 141 mandates
that "the law declared by the Supreme Court shall be binding on all the
courts within the territory of India".
Q.
13. Are these guidelines applicable on industries and other private sector
occupations?
A. Yes.
These guidelines are applicable to Government, Public Sector and Private
employments and irrespective of the fact of receiving a complaint of sexual
harassment, it is obligatory for every employer to constitute a Committee and
also have a section on sexual harassment update in the Annual Report of the
Organization.
Q.14.
Can a woman or employer initiate criminal action against the harasser?
A. Yes. Where such conduct amounts to a specific offence under
the Indian Penal Code or under any other law, it is obligatory for the employer
to initiate appropriate action in accordance with law by making a complaint
with the appropriate authority.
Q.15.
Do a woman need a lawyer to file a complaint or defend her case?
Once you submit the
complaint to the employer it will be the responsibility of the employer to take
up your matter and defend your case. It is also the responsibility of the
employer to engage a lawyer to defend the Institution and also the women's case
in case if the harasser approaches the court. If you want to talk to a lawyer,
contact your local Legal Aid and Advice Board functioning in every district
court wherein being a woman you are entitled to avail free legal aid and advice
irrespective of your financial status.
Q.16. Sexual Abuse of Women
and Girls What acts connote Rape?
"Section 375.
Defines Rape as:- A man said to commit "rape" who, except in the case
hereinafter excepted, has sexual intercourse with a woman under circumstances
falling under any of the six following descriptions:- • First. - Against her will.
• Secondly. - Without her consent.
• Thirdly. - With
her consent, when the consent has been obtained by putting her or any person in
whom she is interested in fear of death or of hurt.
• Fourthly.- With
her consent, when, at the time of giving such consent, by reason of unsoundness
of mind or intoxication or the administration by him personally or through
another of any stupefying or unwholesome substance, she is unable to understand
the nature and consequences of that to which she gives consent.
•Sixthly. - With or without her
consent, when she is under sixteen years of age. Explanation. - Penetration is
sufficient to constitute the sexual intercourse necessary to the offence of
rape. Exception. - Sexual intercourse by a man with his own wife, the
wife not being under fifteen years of age, is not rape." Thus according to
section 375 a man said to have committed the offence of rape if he had sexual
intercourse with a female under sixteen years of age, with or without her
consent; and with a woman in the following circumstances;
A. against her will; or
B. without her consent; or
C. with her consent, when her consent has been obtained by
putting her or any person in whom she is interested in fear of death, or of
hurt (duress), or • with her consent, given on account of her unsoundness
of mind, or intoxication, when she is incapable of understanding the
consequence of her consent, or
•with or without her consent when she is under 16 years
of age. •with her consent by her husband when she is under 15
years of age. •To constitute the offence of rape intercourse is not necessary,
even a slight penetration is enough.
Q. 17.
Is it an offence to have sexual relations with a major girl under the pretext
of marriage?
A. In Bodhisattva Gautam case (AIR 1996 SC 992) the Supreme Court while
dealing with the case of a woman who alleged that the appellant induced her to
have sexual intercourse with him by giving her false assurances of marriage and
later secretly marrying her before God by putting vermilion on her forehead but
after having impregnated her twice, compelling her to undergo abortion on both
the occasions and ultimately abandoned her. The Court herein held that: (i)
the appellant was charged with committing various criminal offences under the
Indian Penal Code and filed a petition to quash the proceedings. Fundamental rights
can be enforced even against private bodies and individuals;
(ii) it is not
necessary, for the exercise of the Supreme Court's jurisdiction under Art 32,
that the person who is the victim of the violation of his or her fundamental
right should personally approach the court. The court can itself take
cognisance of the matter and proceed suo motu or on a petition of any
public-spirited individual;
(iii) rape is a crime against basic human rights
and is also violative of the victim's most cherished fundamental right, namely,
the right to life;
(iv) the Supreme Court has, in any event, the inherent
jurisdiction to pass any order it considers fit and proper in the interests of
justice or in order to do complete justice between the parties;
(v) the court
is prima facie satisfied as to the truth of the serious allegations made by the
respondent and accordingly orders the appellant to pay to the respondent Rs
1000 every month as interim compensation (with arrears since the filing of the
petition by the woman) pending the resolution of the criminal proceedings
against him.
Q. 18. Is it an
offence to have sexual relations with a 'minor' girl with her 'consent'?
A. Yes. The Supreme Court in series of cases held it to be an act
punishable under law. In Narasimha's case (1994 (2) Crimes 263 SC) where
the victim was aged 16 years, held that the consent was of no help. Similarly
in Bhupendra's case (1985 (l) Crimes 524) held that 'although the
prosecutrix was a consenting party to the sexual intercourse, she being minor
question of consent is wholly irrelevant. '
Q.
19. Is it an offence to force a woman allegedly in
prostitution to have sex?
A. Yes.
It is not only a grave violation of her personal human right to life and
personal liberty but also an offence punishable under the Indian Penal Code. It
was held by the Supreme Court that: "Even
a woman of easy virtue is entitled to privacy and no one can invade her privacy
as and when he likes. So also it is not open to any and every person to violate
her person as and when he wishes. She is entitled to protect her person, if
there is an attempt to violate it against her wish she is equally entitled to
the protection of law. Therefore merely she is a women of easy virtue her
evidence cannot be thrown over bound".
Q. 20. Where to approach for redressal
of grievances?
A. For all criminal matters one should approach the police
without delay. Being a woman you can approach the legal aid and advice board
functioning in all the district courts and seek legal advice. If you find any
difficulty or unreasonable delays in redressal of your grievances you may seek
legal opinion locally or may write to the National or State Commissions for
Women, Human Rights, Minorities etc |
| (vi) |
Free Legal Aid and
Advice for Women |
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Q. 21. Who are eligible to avail free
legal aid and advice?
A. Under Section 12 of the Legal Services Authorities Act, 1987,
among others:
(a)
a member ofa Scheduled Caste or Scheduled Tribe;
(b) a victim of trafficking in
human beings or beggar as referred to in Article 23 of the Constitution;
(c) a
woman or a child;
(d) a mentally ill or otherwise disabled person;
(e) a person
under circumstances of undeserved want such as being a victim of a mass
disaster, ethnic violence, caste atrocity. flood, drought, earthquake or industrial
disaster; or
(f) an industrial workman, or persons earning less than
Rs.50,OOO/- p.a. for legal aid before Supreme Court of India and to RS.25,OOO/-
p.a. for legal aid up to High Courts etc. F or more details contact the nearest
district court to meet the officials in the legal aid board. In cities like
Delhi one may access information or legal advice by dialling 'legal aid help
line' no. 011-3073132 (or) 3070345.
Q. 22. What are the cases in which
legal aid is provided?
A. Section 2(1) (a) of the Act, provides for extension of free
legal aid to a person for a 'case', which includes a suit or any proceeding
before a court. Under Section 2(1) (a) the term 'court' connote a civil,
criminal or revenue court and includes any tribunal or any other authority
constituted under any law for the time being in force, to exercise judicial or
quasi-judicial functions. |
| *(Excerpt from: Guild of Service, New Delhi, Sadiq Ahmed Jilani Syed, Violence Against Women – Legal Safeguards) |
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FAQ on the Protection of Women from Domestic Violence Act 2005 |
| 1. |
Why was this law needed?
This law recognizes the right of a woman to live in violence free home and provides legal remedies if this right is violated.
Legal remedies pertain to civil reliefs such as injunctions, compensation and monetary relief. There can be no arrests made on a complaint filed under this law.
This is a civil law aimed at providing immediate support to women facing domestic violence. It is different from criminal law, which is directed at providing punishment to perpetrators of violence (those who commit violence) through imprisonment or fines.
This advantage of a civil law is that it is victim-oriented and the women is not dependent on the police to invite action.
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1A. Can woman continue to use section 498A IPC?
In addition to the above reliefs, under the Act a woman can also file criminal complaints under criminal law (section 498A of the Indian Penal Code) Seeking the arrest of the perpetrator of violence, under the circumstances mentioned therein [Section 5(e)]. The decision of whether to go under the new law or s. 498A IPC is that of the woman and depends on her goals. |
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What is “domestic violence”? [section 3]
1. Any from of abuse causing harm or injury of the physical and / or mental health of the woman or compromising her life and safety. |
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2. Any harassment for dowry or to meet any other unlawful demand. |
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3. Threats to cause injury or harm. |
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Forms of abuse recognized under the law |
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a. |
“Physical abuse” – any act that causes bodily injury or hurt.
E.g. – beating, kicking, punching, etc. |
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b. |
“Sexual abuse” – any humiliating or degrading sexual act.
E.g. – forced sexual intercourse by the husband, making a woman watch pornography against her will etc. |
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“Verbal and emotional abuse” – insults, ridicule and threat causing injury or harm.
E.g.- name calling, ostracizing, blaming a woman for not having a male child etc. |
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d. |
“Economic abuse” – deprivation of the basic necessities of life and entitlements of the woman, disposing off her own assets (such as Stridhan) against her will etc.
In all such case, the judge must bear in mind the overall circumstances of the case in arriving at a conclusion that an act or domestic violence has been committed. |
| 3. |
Who can claim relief under the Act?
Any woman facing violence in a domestic relationship [Section 2(a)]. |
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3a. What is a “domestic relationship”? [Section 2(f)]
Domestic relationship are relationship between a woman and a man living in a shared household. Domestic relationships can be through: |
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Marriage – such as wives, daughter-in-laws, sister- in-laws widows etc. with other members of the family |
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Blood relationships – such as mothers-sons, sister-brothers, daughter-fathers, widow etc. |
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Other relations – through adoption, relationships in the nature of marriage (including victims of legally invalid marriages, bigamous marriage etc.) |
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3b. What is a “shared household”? [Section 2(s)]
A shared household is a household where the woman resides with the man in a domestic relationship. It can also mean the household where she has lived in a domestic relationship and from which she has been subsequently thrown out.
It does not matter that the shared household is not owned by either the woman or the man. This law applies even in cases where the house is on lease / license or rent or is part of a joint family property. All that has to be proved is that the woman lives or has lived with the perpetrator of violence in this home in a conjugal relationship; or in a familial relationship as described above. |
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What is a woman’s right in a shared household? [Section 17]
The PWDVA recognises a woman’s right to reside in the shared household. This means that she cannot be thrown out of such a household except through procedure established by law. In cases where she is thrown out she can be brought back again after obtaining an order from the court. The court can also direct the perpetrator of violence to provide alternative accommodation in cases where she does not want to return to a violent home. |
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Who can a woman complain against? [Section 2(q)]
A woman can file a complaint against any adult male perpetrator of an act of violence. In case where the woman is married, or lives in a relationship that is in the nature of marriage, she can also file a complaint against the male or female relatives of the husband/ male partner who have perpetrator the violence. |
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What can a woman get by filing a complaint under this law?
A woman can get reliefs from the court. This includes much needed support and compensation. |
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The orders the court can direct are as follows:
1. Protection Order [Section 18]-
This can also be termed as a “stop violence” order. Through this order the court can direct the other party to immediately stop the act of violence.
The following incidents can also be prevented through the “protection Orders”: |
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Preventing the perpetrator from entering the woman’s place of employment and causing harassment. |
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Preventing any communication with the woman from the perpetrator. |
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Preventing any violence being caused to a person related to the woman. |
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Preventing any financial action from being taken by the perpetrator to the woman’s detriment. |
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2. Residence Order [Section 19]
A residence order may be passed by the court in cases where the woman apprehends being thrown out of the house (shared household) or in cases where she has been thrown out and wants to return to her house. The aim of this order is to ensure that women have a shelter that is safe.
In case where a woman does not feel safe living with the male perpetrator of violence, she can apply for an order seeking his the removal from the shared household. Or else the court can direct the perpetrator to provide alternate accommodation for the woman.
No orders for removal from a shared household can be obtained against female relatives under the PWDVA. |
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3. Monetary relief [Section 20]
This order can be sought to meet any expenses the woman may have incurred as a result of the violence faced. This may include payment of medical bills, any loss of belonging, etc. Married women or women living in the nature of marriages can also claim maintenance from the husband/ male partner. The amount claimed under this provision is to take care of actual expenditure incurred by the woman. |
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4. Compensation order [Section 22]
A compensation order can be asked for by the woman for injuries (mental and physical) sustained. This is over and above the actual expenditure that can be obtained by a monetary order explained above. |
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5. Custody order [Section 21]
A woman can also ask for temporary custody orders for her children. This is to prevent the woman from being separated from her children, which itself is a form of emotional abuse and blackmail.
This order temporary in nature and does not affect rights under existing laws on custody and guardianship. |
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6. Interim / Ex parte order [Section 23]
An interim order can be given by the time the proceeding are initiated under the PWDVA and before a final order passed. This is to ensure that women not detrimentally affected during the course of the legal proceedings. In order to get interim orders, a woman has to show that she has or she is facing violence, or fears violence.
An ex parte order means an order that is passed in the absence of the other party to the dispute. Such order are interim in nature and passed only if there is an immediate danger to the person making the application or when the other party refuses to appear in court despite prior intimation given by the court.
E.g. Sylvie has filed an application in court for a “stop violence” order against her brother, Edward who has been beating her. The threat to her life and safety is so severe that she needs an immediate order. The court can then pass an ex parte “stop violence” order against him even without hearing him. The order will be served on him along with the application. He will of course have the right to be then heard and ask for the order to be vacated (i.e. direction by the court to bring the order to an end). |
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8. How long will these orders be in effect?
These orders will be force till such time the woman requires it. She can ask a discharge of the order by applying in court [Section 25(1)].
E.g. a woman (Radha) has got an order for monetary relief from the court stating that she will get Rs 5000/- a month from her husband. However, subsequently, both Radha and her husband agree on a mutual consent divorce with a settlement giving her a lump sum amount. She can then go to court and ask for an order stopping the payment of Rs 5000/- per month as monetary relief under the new law.
Any of the parties, i.e. the woman or the man can, at any time, apply to the court for altering or modifying the order [Section 25(2)]. In order to get this alternation, a change in circumstances has to be shown. E.g. – an application can be made to alter the amount received as monetary relief. |
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9. What if the perpetrator continues to commit violence or violates the orders passed by the court?
Violation or not complying with the order of the court is a criminal offence under this Act. In such cases, the woman can complain to the magistrate or the police or the Protection Officer. The perpetrator can be arrested following such complaint.
Violation of an order of the court attracts imprisonment for a maximum of 1 year and / or a fine of Rs 20,000/-[Section 31(1)].
The court can also initiate proceedings under criminal law, i.e. Section 498A of the IPC in addition to the above [Section 31(3)]. |
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9. What if the woman or the other party is not satisfied with the order that is received?
In such cases either party may appeal against the order in the higher court. If the application has been filed in the Magistrate’s court then the appeal shall lie before the Session’s Court. All appeals have to be filed within a period of 30 days from the date on which either of the parties gets to officially know of the order [Section 29]. |
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10. Who can help the woman in getting the reliefs under the Act?
The woman can get assistance from the Protection Officer (PO) & the service provider (SP) for getting the reliefs under the PWDVA.
Protection Officer (PO) is an outreach officer of the court (not yet appointed in most states), who can help a woman in making complaints, filing an application before the Magistrate for orders, helping her in getting support like medical aid, counseling etc., and making sure that the orders passed by the court are enforced [Section 9 & Rule 8, 10].
E. g. if a woman has been beaten up by her husband and needs to go to a hospital, she can approach the PO to arrange for transportation to the hospital and make sure that she gets proper treatment.
Service Provider is a NGO or other voluntary association registered with state governments. They provide assistance and support to the woman facing domestic violence. A woman can go to a registered SP for making a complaint under the Act. An SP will assist her by providing legal aid, medical care, counseling or any other support [Section 10].
Through there will be other unregistered NGOs providing support service to women, but the major difference between the unregistered SPs and registered SPs under the law is that complaints can be lodged only with the registered SPs.
E.g. if a woman has been thrown out of her house and needs shelter, then along with lodging a complaint, the SP will also take her to a shelter home where she can stay temporarily. |
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11. How can woman get help if she faces violence at night or if she cannot immediately go to the police or PO?
In such cases of emergency, either the woman herself or any other person on her behalf can give information of the incident of domestic violence to the PO or SP even through email or telephone. This can be done anytime during the day or even at night.
The PO or SP will then herself go to the place where the incident has taken place with the police and record the DIR. They will then immediately present this DIR to the Magistrate for an immediate order to make sure that the woman is safe and violence is stopped [Rule 9].
The PO, SP and police are under a duty to assist and protect the woman in such emergency situation, and she does not have to go to them to lodge a DIR. |
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