Related Laws*

In the present era of ever changing technology, law has a significant and powerful role in bringing about a social transformation, which will lead to gender equality.

According to the provisions enshrined in the constitution of India, women of Kerala have equal status with men. In addition to the equality provisions, special laws for the upliftment of women were also perceived as they are the marginalized and disadvantaged section of the society who needs special measures to come at par with men.

It is widely accepted fact that women in Kerala enjoyed better legal status. The indicators of high female literacy, favorable sex ratio, high age at marriage, infant mortality rate, health status etc bring the state similar to the developed nations. In spite of all this, women in Kerala are easily vulnerable to crime, sexual harassment, violence, rape, kidnapping etc. This paradox between high development indicators and the real life situation remind us to interrogate into the constitutional provisions and protective laws. Is it true that the women are not getting a fair deal due to the patriarchal attitude of the society? 

Women Protective Laws
The Indian Constitution that came into force on 26^th January 1950 is not merely a constitutional instrument, but the machinery by which laws are made for the benefit of all citizens.

Personal Laws
The personal law specifies laws for women belonging to various religion. For the Hindus,  the important laws are Hindu Marriage Act – 1955, The Hindu Succession Act 1956 and these laws are also applicable to Sikhs, Buddhists and Jains.

The Act for Christians include – Indian Christian Marriage Act- 1872, Indian Succession Act. But recently a new Act for Christian was made by repealing the existing (1) Indian Divorce Act 1869, The Indian Christian Marriage Act, 1872, the Indian and Colonial Divorce Jurisdiction Act 1926 and 1940, Cochin Christian Marriage Act 1095 (ME). For the Muslims the laws concerning are Hanahior Sunni Muslim Law, Dissolution of Muslim marriage Act 1939 and  Muslim Women’s Protection of Rights Act 1986

The Hindu Marriage Act, 1955
Under section 24-25 Hindu was under a legal obligation to maintain her husband. This does not grant the right of divorce by mutual consent. The adult male was granted a privilege of exercising a choice of remaining unemployed and claiming from his employed wife. Husband has the right to determine the choice of matrimonial home even if wife is employed in a distant place against here will. Until 1975, the courts decided in favour of husbands right for restitution of conjugal rights against the wife. Around 1975 three important judgments recognized the women’s right to hold on to a job away from her husband’s residence. And secured for women this right. The law recognizes only monogamous marriages. In the absence of any clear proof the man has the choice a admitting either the first or his subsequent relationships as a valid marriage and escape from financial towards the other woman Rituals like Satapathi, Vivaha dhan and Kanyadan are essential for Hindu marriage. Therefore if these ceremonies could not be proved by the first wife, in respect of her husband’s second marriage the could escape from convicting even though he had cohabited with second wife the community had accepted the man and the second wife as husband and wife or even if or even if he had fathered children through the second wife.

The Hindu Succession Act, 1956
Section 6: In a family where there are two sons and one daughter, upon the death of the father each of the sons would inherit one-third of the property as coparceners the remaining one third is the father’s separate property which would be divided in four parts, one for the wife one for the daughter and one each for the sons. So while the sons would be entitled to one-third plus one twelfth the daughter’s share would only be one twelfth of the property. The daughters had equal rights only in the separate or self-acquired property of their father.

Dowry Prohibition Act, 1961
According the act dowry means any property or valuable security given or agreed to be given either directly or indirectly (a) by one party to a marriage to the other party to the marriage or (b) by the parents of either party to a marriage or any other person to either party to the marriage or to any other person at or before or after marriage of said parties, but does not include dower or mehr in the case of person to whom the Muslim personal law applies. “The gifts are excluded from dowry. The act made giving or taking or abetting the giving or taking of dowry an offence. The demanding for dowry is also an offence under this act. Agreement for giving or taking of dowry is void. Dowry if given or received shall be for the benefit of wife or her heirs. Dowry shall be transferred to the wife within the stipulated time. The dowry prohibition act was amended in 1986. As the per the amendment there is ban on the advertisement of dowry. In the dowry-related offence the burden of proof that he had not committed an offence shall be upon the offender himself.

Dowry prohibition (Maintenance of Lists of presents to Bride and bridegroom) Rules 1986 were enforced to ensure dowry prohibition. In accordance with the center’s amendment Act of 1984, the Government of Kerala enforced them with effect from 2^nd October 1985.

According to the Rules, the lists of presents that are to be maintained include;

In the exercise of powers conferred by section 10 of the Dowry prohibition Act 1961 (Central Act 28 of 1961) the Kerala Dowry Prohibition Rules enforced in 1992.

To make the law more effective, the period of limitation filling complaints was removed. It empowers the court to act on its own knowledge or on a complaint filed by a recognized welfare organization. Provision for appointment of Dowry Prohibition officers and Advisory Committees has also been made. Advertisements sounding dowry demand for marriage are now punishable.

Immoral Traffic (Prevention) Act, 1956
The major objective of the Act was the prevention of women from sexual abuse. The law also aims to inhibit or to abolish commercialized vice, namely the traffic in women and girls for the purposes of prostitution as an organised means of living. It does not penalize individual prostitute or prostitution itself. In practice it prohibits prostitution only in the public places. There is no law against the client. The following acts are offences under this law. (1) Any person who keeps or manages or acts or assist in keeping or management of a brothel shall be punishable; (2) any person who uses or allows any other person to use any premise under his or her control as a brothel; (3) living on the earnings of prostitution; (4) procuring inducing or taking women or girl for the purpose of prostitution; (5) detaining a woman or a girl in premises where prostitution is carried on; (6) prostitution in or in the vicinity of public places; (7) seducing or soliciting for purpose of prostitution; (8) Seduction of a woman or girl in custody.

Medical Termination of Pregnancy Act 1971
This criminalizes abortions. It is enacted to liberalize certain prevailing provisions in regard to the termination of pregnancy: (1) as a health measure – when there is danger to the life or risk to physical or mental health of the women; (2) on humanitarian grounds – where there is substantial risk that the child, if born would suffer from deformities and diseases and thereby to lessen the agony of the family, especially of the mother. According to the Act a pregnancy may not be terminated (a) where the length of pregnancy does not exceed twelve weeks or; (b) where the length of the pregnancy does not exceed twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are of the opinion formed in good faith that (1) the continuance of the pregnancy would involve a risk to the life of pregnant women or of grave to her physical or mental health; i.e., pregnancy caused by rape, pregnancy caused by failure of any device or method used by any married woman of the husband. No pregnancy of a woman under the age of eighteen years and of a lunatic major woman shall be terminated except a written comment from her father or guardian. No pregnancy shall be except with consent to the pregnant woman. The places of MTP should be a hospital established and maintained by govt. Length of the pregnancy and the requirement of two medical practitioners not considered when a registered medical practitioner is of the opinion that termination such pregnancy is immediately necessary to save the life of a pregnant woman The registered medical practitioner may or may not posses the experience or training in gynecology and obstetrics.

Pre-Natal Diagnostic Technique (Regulation of Prevention and Misuse) Act, 1994.

The Act came into force in Maharashtra in 1988 for the first time, through an act passed by the state legislature. It aims to prevent the misuse of pre-natal diagnostic tests leading to female foeticide As result of the serious move from women’s groups, the central law regarding this was passed in 1994. But the practice of sex determination is effectively prevented by this law. Kerala gov. has started action to consuentise the people about this Act even though female foeticide is not become a serious problem here.

The Commission of Sati Prevention Act, 1987
The Act was passed by the central govt., after the incident of Roop Kanwar, a 19 year old graduate student in Deorala, Rajastan burnt alive voluntarily or forcefully, on 4^th September 1987 which was being hailed and the girl was being glorified. The main objective of the act is the prevention of the commission of sati and its glorification. The Act’s definition of sati includes the following deeds: (1) the burning and buying alive of any widow along with the body of the deceased husband, (2) burning and buying of any women with other relative or with any other relative or with any article, object or thing associated with the husband or such relative, irrespective of reforming whether voluntarily or forcefully; The definition of glorification of sati includes (1) the observation of any ceremony (2) participation in any procession or any other function related to the commission of sati (3) the construction of any temple in memory of some one who committed sati or the performance of any form of worship or ceremony regarding sati.

The collector or district magistrate has been given to take an action against sati.

The Kerala Joint Hindu Family System (Abolition) Act, 1975
This Act brought in for the purpose of abolishing the Kerala joint family system itself. The act seeks to introduce drastic and fundamental changes in the law relating to ownership of property of Hindus in Kerala. The main operative provisions in the Act (viz. Ss 345 and 6) are practically on the lines of Ss86 to 89 mentioned in the part V of the Hindu Code Bill. The commencement of the act repealed twelve Marumakkathayam laws followed by various communities. According to section 4(2) of the Act, all the members of the family will hold the family property as co-tenants with equal shares. Sec.4 (1) of the act provided, “any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of thesis act shall cease to have effect with respect to any matter for which is made in this Act.

According to the act the women also should get their due share from their father’s property. The customs and practices regarding marriage, divorce, and maintenance allowed to follow according to the personal law or the passed by the e govt.

Human Rights Protection Act, 1993
This was implemented in 1994. Human rights commissions with the objective of dealing with the rights relating to equality, liberty and dignity of the individual guaranteed by the constitution or embodied in the rights code was set up in Delhi initially. Then the state commissions were constituted in various states operating under it.

Procedure of enquiry
On complaints the HRC will write to the govt., to the chief secretary and others under him. HRC will enquire according to the laws prevailing at the time of the occurrence of crime or offence. The punishment shall be usually with fine or dismissal from job. The HRC will enquire cases such as child labour. Minority rights, cheating (IPC 420), etc.

National Commission of Women Act, 1990
The act came into being in 1990 by an act of parliament. The main objective of the act is to monitor all matters relating to the constitutional and legal rights of women. Under the NWC the state level commissions are formed to take up the legal matters concerning their rights. The commission conducts Adalats, adhoc committees and public hearings in various districts in accordance with the complaint they receive and refer the ones which will not come under the provisions of the act to concerned departments, and arrange free legal aid for the needy.

The Act also envisages reviewing laws and rules to ensure that they don’t discriminate against women in anyway. The Act also makes it mandatory for the Government to place the annual reports containing recommendations of the commission in the Parliament with and action taken’ report and reasons for not taking actions on recommendations if any.

Indecent Representation of Women (Prohibition) Act, 1986
The main aim of the Act is to prevent the depiction of women in degrading and undignified ways. By ‘indecent representation of woman’ the law means the ‘ depiction in any manner by the figure of a woman, her form or body or any part thereof is such a way as to have the effect of being indecent, or derogatory to, or denigrating women or is likely to deprave, corrupt or injure the public morality or morals’. Although, there exist IPC provisions against obscenity under which sale, hire, manufacture, distribution or exhibition of ‘obscene’ book, pamphlets, paper writing, drawings, representation figure, etc is made punishable, the public protest against sexist advertisements in the media resulted the enactment of this Act by Parliament. The law has been criticized for lacking a more precise definition of the concepts ‘derogating to’ and denigrating. 

Protection of Women from Domestic Violence Rules -2006
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Salient features of Laws Relating to Women
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Reviews of Laws relating to Women
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Social Security and Employment Welfare Laws
The important legislations aim to provide social security and labour welfare and benefits to women include Beedi and cigar workers [conditions of Employment] At, 1966, Factories Act, 1948; Mines Act, 1952; PlantationLabour Act, 1951; Equal Remunaration Act, 1978, etc

Beedi and Cigar workers [Conditions of Employment] Act, 1966 provides the provision of crecha for the benefit of workers. Section 25 of this Act prohibits the employment of women in any industrial premises except between and 6 A.M and 7 P.M. The Act also provides that in every industrial premise where in more than 50 female employees are ordinary employed, there shall be provide and maintained a suieable room; A room for the use of children under the age of six years of such female employees. Section 12 of Act of empowers state governments to specify the number of iatrines and urinals in the industrial premises in propotion of the male and female employees employed therein. Under this Act maternity benefits are also available even to home based worketrs also.

Maternity Benefits Act, 1961
Maternity benefit Act [1961, 1972] confers various rioghts upon the women workers during their confinement sickness arising out of confinement, miscarriage , etc.Maternity benefits are to be provided of completion of 80 days of working. It is no required to work during six weeks immediately following the day of delivery or miscarriage. No work of arduous nature; long home of standing likely to interfere with pregnancy normal development of the foetus; or which may cause miscarriage or is likely to affect healthy to be given far a period of one immediately proceeding the period of six weeks before delivery. On medical certificate, advance maternity benefit to be allowed Rs.250/- as medical bonus to be given when no pre-natal confinement and post-natal care is provided free of charge. In Kerala the maternity leave has increased from 90 to 120 days.

The Factories Act, 1948 prohibit that factories women not to be engaged for cleaning, lubricating or adjusting  as part of prime or transmission machinery. The Act provides maternity leave up to 12 weeks with wages.

The Mines Act, 1952 prohibits women's employment in Mines below ground.

The interstate Migrant workmen [Regulations of Employment and condition of service] Act, 1979 directs that separate toilers and washing facilities to be provided for women

The plantation Labour Act, 1951 mentioned that women workers to be provided time off for feeding children

The contract Ladour [Regulation and Abolition] Act, 1970 prohibits women from working beyond nine hours between 6 AM 7 PM with the exception for doctors and nurses in plantation.

The employees state insurances [General] Regulation, 1950 allows women to claim for maternity benefit become due on the date the medical certificate is issue for miscarriage, sickness arriving out of pregnancy, confinement or premature birth of child

Apart from these Acts, the Act like Beedi Workers welfare Fund Act, 1976; Iron Ore Mines and chrome ore Mines labour walfare Fund Act, 1976; Limestone and Dolomite Mines Labour Walfare fund Act,1972; Mica Mines Labour Walfare fund Act,1946 make the appointment of a women member in Advisory Committee and Central advisor Committee mandatory

Equal Remuneration Act 1976 provides for equal pay for men and women doing the same or similar work. It prohibits discrimination on the basis of sex at the time of recruitment and while in employment. No discrimination is permissibly in service conditions except where employment of women is prohibited or restricted by or under any law. The act also prohibits discrimination against women in matters of employment promotions, training, transfer, etc.

 The Building and other construction workers [Regulation of employment and condition of service]. Bill 1996 that was passed by parliament and awaiting President's assent contain provision for Creches for construction workers' children. The Act made this provision as compulsory.

 The Drugs and Magic Remedies [Objectionable Advertisements Act], 1954 aims to the prohibition of advertisements of certain drugs for the treatment of certain diseases and disorders. According to the provisions of the Act, no person shall take any part in the publication of any advertisement refrring to any drug in terms, which suggest or are calculated to lead to the use of that drug for:

a) The procurement of miscarriage in women or prevention of conception in women; or
b) The maintenance or improvement of the capacity of human beings for sexual pleasure; or
c) The correction of menstrual disorder in women; or
d)  The diagnosis cure, mitigation, treatment or prevention of any disease, disorder or condition specified in the scheduler or any other disease, disorder or condition [by whatsoever name called] which may be specified in the rules made under the Act.

The punishment for the offence under this Act include; for the first conviction imprisonment up to six months or with fine or with both. For the subsequent convictions the punishment may extend up to one- year imprisonment or fine or with both.

Dissolution of Marriage
The law of dissolution of marriage (divorce) under each personal law is different. Under the Hindu Law, which has been reformed, the husband and wife have the same grounds for divorce, in addition to the option of divorce by mutual consent. A Hindu wife or husband can obtain divorce on various grounds, if the other spouse, (a) lives in adultery (b)converts into other religions (c) suppose from venereal diseases, (f) has not been heard of being alive for a period of seven years or more by persons who would naturally have heard of the person,(g) fails to resume cohabitation for a period of two years after the decree of judicial separation, and (h)fails to comply with decree for restitution of conjugal rights. The law provides two more grounds to the wife to obtain a divorce(a) if the husband has more than one wife living, and (b) if he has been guilty of rape, sodomy and bestiality.

The following are the procedures to obtain a decree from the court; (1)the filing of the petition by the applicant (petitioner),(2)issue of notice to the respondent (other spouse), (3)reconciliation efforts by the court, (4)written statement of the respondent in reply from to the notice, (5) issue for consideration determined by the court, (6)recording of the evidence of the petitioner and witnesses, (7)drawing a decree.

 The Hindu law prohibits bigamy and made it a criminal offence in the 1950s. Under the  parsi marriage and Divorce Act as amended in 1957, both the husband and wife can obtain divorce on the ground, which have been listed out in the Hindu Marriage Act.

 Unlike Hindu law, the Muslim and Christian law made it far easier for the man to get a divorce. There is no provision of divorce by mutual consent in Cristina marriage law. The Muslim law allows Mubarrat - the divorce to mutual consent. Under the Muslim Marriage Act, 1935, the wife can obtain divorce on following ground.

Though the law does not allow the women a right to repudiate marriage at her own will, under the traditional law women can seek divorce in three forms: Talaq Tafwid, khul and Mubarat.

According to Talaq Tafwid, the husband delegates his right of divorce in a marriage contract, which may stipulate that inter – alia on his taking another wife, the first wife, has the fright to divorce him. The courts upheld these agreements as not opposed to public policy and to the spirit of  Muslim law.

As pre Khul divorce is possible through an agreement between parties to marriage, on the wife’s giving some consideration to the husband, for her release from the marriage bond. The terms usually take the form of bargains and wife giving up her dowry.

Mubarrat means divorce by mutual consent. Regarding maintenance from the husband, the divorced wife has to take the recourse to the Muslim women (Protection of Rights on divorce) Act, 1986. The Act specifically aims to protect the rights of Muslim divorced women. The Muslim women are excluded from the purview section 125 (1) of the Criminal procedure code.

For the Christian, the Indian Divorce Act, 1869 that permits both the husband and wife to obtain a divorce, is applicable to all Christians including Syrian-Christian of Kerala. Earlier the Travancore and Cochin Christian Acts controlled the Syrian Christian women. The Indian Christian Marriage Act-2000, which may be enforced soon allows a Christian woman to get a divorce on the following grounds:

The Act allows the wife to obtain divorce on the ground that husband committed rape or sodomy after marriage; a suit has been passed against husband awarding maintenance to the wife under GPC Sect. 125.

The Act provides that petition for divorce not to be presented before the lapse of one year of the marriage.

With this Act, regarding divorce the husband and wife get equal rights.

Family Court Act, 1984
The purpose and aim of establishing the Family Courts is to protect and preserve the institution of marriage and to promote the welfare of children and provide for settlement of disputes by conciliation. The Family Courts Act extends to the whole of India except Jammu and Kashmir.

The major intention of the Act is the settlement of family disputes in an atmosphere of reconciliation and understanding. The Family Courts and established for a speedy and affordable justice to be made available. The Act provides in the appointment of judges of the Family Courts, preference should be given to women for such appointments. The Act provides for the association of social welfare agencies, counsellors, etc during conciliation stage. The act simplifies the rules of evidence and procedure so as to enable a Family court to deal effectively with a dispute. It also provides for only one right of appeal to the High Court so as to cut short the long litigation. At family court women can seek justice without the fear they are at a disadvantage.

Public Interest Litigation
According to the explanation of the supreme Court “where legal wrong or injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal rights or any burden is imposed in contravention of any constitutional or legal provision or when authority of law or any such legal wrong or any legal injury or legal burden is threatened and such person or determinate class of persons is by reason of poverty, disability or socially or economically disadvantaged position, unable to approach the court for any relief, any member of the public can maintain an application for an appropriate direction, order or writ”. This led to a new investigative thrust for the courts and has led to increased accountability.

The Legal Service Authorities Act, 1987
The Act aims to provide free legal aid to weaker sections of the society to ensure opportunities of justice to them. Under this Act, a woman, a victim of trafficking or a beggar deserves free legal services for filling and defending her case. The Act contains provision for legal literacy and legal aid camps. Legal literacy programme aims to educate women and other weaker sections of the society about their rights, benefits and privileges guaranteed by various legislations and enactments. The legal aid camps aims to educate the people the five way to settle issues such as matrimonial matters and compensation issues through Lok Adalats.

The Representation of the People Act, 1951
Through the amendment, the provision for disqualification for election to parliament or to any state legislature during the period of conviction for contravention of any provision of the Dowry Prohibition Act, 1961 or the Commission of Sati (Prevention), Act 1987 and for a further period of six years has been incorporated to the Act.

The Married Women’s Property Act, 1874
Acknowledges married women’s right in respect of their wages, earnings, insurance policies taken by them or their person in the name of his wife and unmarried daughter shall be exempted from the prohibition and it shall be presumed that the property had been purchased for the benefit of the wife or the benefit of the unmarried daughter.

Child Marriage Restraint Act, 1929
This Act Prohibits the age-old customs of solemnizing child marriages. The Act prohibits the marriage, in which the male has not completed 21 years of age and the female has not completed 18 years of age.

Section 3 of the Act punishes a male adult below 21 years marrying a child with simple imprisonment, which may extend up to 15 days, or with fine, which may extend up to Rs.1000/- or with both. According to section 4 of the Act, a male adult above 21 years marrying a child will be punished with simple imprisonment, which may extend to 3 months and shall also be liable to fine. The punishment for solemnizing a child marriage will be “whoever performs, conducts or directs any child marriage shall be punishable with simple imprisonment which may extend up to three months and shall also be liable to fine, unless he proves that he had reason to believe that the marriage was not a child marriage. The parents also will be punished with simple imprisonments up to 3 months or with fine.

Other legislation, which protects women indirectly, includes the following: Bonded labour system Abolition Act, 1976. The children Act, 1960. The children (pledging of labour) Act, 1933, Dangerous Drugs Act, 1933, Dangerous Machines Regulation Act, 1982, Matrimonial causes (war marriages) Act, 1956, young person’s (Harmful Publication) Act, 1956. The Juvenile Justice (Care and protection of Children) Act, 2000, etc.

Apart from the above-mentioned legislations and enactments, the government of India took several steps for empowerment of women by providing different programmes through the five-year plans. These include the National policy on Education 1992 that focused on the promotion of women’s education in all areas of learning with a view to eliminate any kind of sex based discrimination and stereotyping with the guarantee by equality before law.

National Policy for the Empowerment of Women 1996, (awaits cabinet’s approval) aims to guide and inform action at every level and in every level and in every sector by mainstreaming a gender perspective into all laws, regulations, plans, policies, programmes and budgetary allocations.

The National Resource Centre for Women is proposed as apex body for promoting and incorporating gender perspectives in politics and programmes of the government.

Besides, the government of India has ratified various international conferences and conventions. The important among them is the convention of the elimination of all Forms Discrimination Against Women (CEDAW). India has ratified it on 25^th June 1993 with “Declaratory statement in respect of Articles 16(1) and 16(2) of the convention and “Reservation” in respect of Art.2991). The implementation of articles 16(1) and (2) may call for amendments to certain personal laws and making registrations of all marriages compulsory.

 The convention, which is often described as an “international bill of rights for women” provides for women’s civil rights and their legal equality in all fields and established an agenda for national action to and sex-based discrimination.

SC-ST (Prevention of Atrocities) Act prohibits sexual abuse of SC-ST girl.

* Source: Kerala Women’s Commission, Status of Women in Kerala, A Report Based on Sample Studies