In Roxann Sharma Vs Arun Sharma, Roxann was involved in a bitter child custody battle with her estranged husband. A court in Goa granted her interim custody of their child, but Arun Sharma whisked their son away and refused to let Roxann meet the child.. She filed a case against him, which led to the landmark judgment pronounced by the apex court regarding children caught in a legal battle between parents. The Supreme Court ruled that when estranged parents are involved in a legal tussle over the custody of a child who is under the age of five years, the custody of the child will remain with the mother.
Tamil Nadu Vs Suhas Katti’s case led to the first conviction under the Information Technology Act, 2000. The victim was being harassed by the accused Suhas Katti, when she refused to marry him. He would send defamatory and obscene messages to her online in a yahoo message group. To add to the agony, she began to receive phone calls from unknown people soliciting sex work. The victim filed a complaint in February 2004, and within seven months the accused was convicted. In an age of merciless trolls and other forms of online harassment, this judgement acts as a tool that woman can use to safeguard their dignity.
There are many landmark judgments, rules and laws which put the women of India at par with the men, but the question is
- How many women are aware of their rights?
- Do the people around the woman know what rights she is entitled to?
- Rights, responsibilities and duties go hand in hand. Do you know that?
Awareness about the topic is the need of the hour for not just the women but also the people around them. The cases in Family Courts and cases for counselling with marital counsellors are the testimony, why I am writing about this topic. Men folk need notavoid reading this as awareness on this subject may be helpful to your own sister, mother, daughter, a friend or a colleague.
Rights of Women in India
What authority the police have on you? Legal Rights of a Wife
The protection of Women from Domestic violence Act
The Sexual Harassment of women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
The Hindu Succession Act The Maternity Benefit Act The Dowry Prohibition Act
The Legal Services Authorities Act
What authority the police have on you?
- As per the court orders, every police station must have a lady police officer not below the rank of a Head Constable round the clock
- A lady cannot be arrested by a male police officer, in the absence of a lady constable.
- A lady cannot be arrested before sunrise or after sunset.
- The police can investigate a woman only at her residence.
- A rape survivor can record her statements at the place of her choice, and the medical procedure of a rape survivor is only to be conducted by a government hospital.
- All women are entitled to avail free legal aid.
Legal Rights of a Wife
In Indian society, a marriage is a sacred coming together of two people. Not just two people come together even the families come together. A girl to be married is prepared and expected to done certain responsibilities as a wife and a daughter-in-law. If every wife, husband and in-laws too are aware of the rights that a girl as a wife is entitled to, I guess, there wouldn’t be so many issues and problems that we see around.
All women, married or soon to be, should know their legal rights. Women can penalize any oppression in marriage and claim freedom from the alliance and live with dignity if they are aware of their legal rights.
1. Right to Matrimonial Home:
- A wife has a legal right to live in the matrimonial house, even after the husband dies. Even if the house is not owned by the husband, belongs to his parents or is a rented apartment.
- In case of separation, she can stay at the marital house until an alternative is arranged for her or she goes to her parental house
2. Right to Property:
- According to the 2005 amendment of the Hindu Succession Act, a daughter whether married or not, has equal rights to inherit her father’s property as her brother.
- A woman has equal right to inherit her husband’s property as other heirs. She can inherit only if the husband has not prepared a will or hasn’t excluded from the will.
- If the husband remarries without dissolving the first marriage, the rights to the property belong to the first wife.
3. Right to Abortion:
- The Medical Termination of Pregnancy Act, 1971 gives a woman full autonomy to abort a child without the permission of the husband.
- The upper limit of getting a child aborted has been raised to 24 weeks
4. Right to Divorce
- Hindu Marriage Act gives women the legal right to file for a divorce without the consent of the husband.
- The divorce can be filed on the grounds of adultery, cruelty, desertion, thrown out of marital home, mental disorder
- Section 13B of the Act allows divorce by mutual consent.
5. Right to Seek Maintenance and Alimony
- Every married woman has the legal right to seek maintenance from her husband for a lifetime.
- If the marriage fails, the Hindu Marriage Act provides women with the legal rights to claim maintenance for herself and her children from the husband during the proceedings and permanent maintenance after divorce.
- The amount of maintenance doesn’t include Stree Dhan and is set up by the court on the basis of the husband’s financial and living status.
If the wife is earning:
- The wife can claim maintenance from the husband only if he earns more. If both earn the same, she cannot claim maintenance for herself but can claim for the children. The husband can claim the maintenance if the wife earns more.
6. Right to Claim Child’s Custody
- The wife has equal custodial rights and duties. If the child is below five years of age, the mother has the superior status.
- The wife can claim the custody of her children after divorce or separation regardless of whether she is employed or not.
- The children are mute spectators and at the receiving end of the harsh system of divorce and custody litigation. To undo the nightmare, in two of the recent landmark judgments, the wish and willingness of a 7 year and 11 year old, was taken into consideration when granting custody.
The protection of Women from Domestic violence Act(DV Act)
It is a comprehensive legislation to protect Indian women from different types of domestic violence. It ensures protection for women who are in a relationship and are subjected to constant physical, mental, sexual, verbal and emotional violence.
- A woman can report domestic violence under the Protection of Women Under Domestic Violence Act
- This Act criminalizes physical, emotional, sexual , economical and other forms of ill-treatment.
- She can claim protection, maintenance, custody, compensation and continue to live in the same house.
In V.D. Bhanot vs Savita Bhanot, a petition was filed by the wife under the provisions of the DV Act, for the maintenance and for seeking of protection and accommodation as per the provisions of the DV Act. The magistrate gave an order in favour of the wife, however dissatisfied with it she filed an appeal before the Additional Sessions Judge. The appellate court dismissed her claim on the ground that the cause of action had arisen before the DV Act, came into force and as such it was not maintainable.
In appeal the Delhi High Court held that the act would be applicable to cases where the cause of action had arisen before the DV Act came into force. Agreeing with the Delhi High Court, the Supreme Court held the intention of the parliament was to protect the rights of the woman enshrined in Article 14, 15 and 21 and as such DV Act would beapplicable to cases where the cause of action arose before the DV Act came into force.
It was held that the wife in the present case was to be provided with accommodation and maintenance in accordance with the DV Act.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013. (POSH ACT)
This act was enacted as a comprehensive legislation to provide a safe, secure and enabling environment, free from sexual harassment to every woman. It is the duty of every employer to create Sexual Harassment Complaints Committee within the organization for complaints. It is mandatory for all firms, public and private, to set up these committees to resolve matters of sexual harassment. The committee be headed by a woman and comprise of 50% women as members. Also, one of the members should be from a women’s welfare group.
Major Elements of POSH Act :
- Provide a safe working environment, which shall include safety from persons coming to the workplace.
- Display the penal consequences of the workplace sexual harassment, and the order constituting the Internal Committee(IC), at any conspicuous place at the workplace.
- Conduct training programs to create awareness and sensitization among the employees at all levels.
- Conduct orientation programs for the members of the Internal Committee(IC).
- Provide necessary facilities for the members of the IC and assist in any manner required to enable the aggrieved woman to secure justice under the Indian Penal Code (IPC).
- Monitor the timely submission of the reports by the IC and assist in any manner required to enable the aggrieved woman to secure justice under the IPC.
In Vishaka Vs State of Rajasthan, a writ petition was filed for the enforcement of Fundamental Rights under Art 14,19 and 21 of the Indian Constitution. It was contended that the recent incidents of Rape and Sexual Harassment had curtailed the freedom of the women in India and there was general apprehension in the minds of the women with regard to their safety.
The Court took notice of the issue at hand and agreed that there was indeed a void which needed to be filled. The court for the first time invoked the International Covenants to which India was a party and signatory. It specifically relied on the Convention on the Elimination of All Forms of Discrimination against Women, 1979(CEDAW), to adjudicate the instant petition.
The Court held that there was a need to provide a safe environment to women which was free from Sexual Harassment and as such it made several guidelines for the implementation by the Employers and the Government.
It was directed that the Employer had a duty to detect and deter such crimes and every employer was duty bound to take appropriate steps in order to curb the incidences of sexual harassment.
In Apparel Export Promotion Council Vs A.K. Chopra, a female employee typist was molested by the Respondent. She filed a complaint with the Chairman and the Respondent was placed on suspension. An inquiry was initiated by the company’s Disciplinary Authority and the Respondent was found guilty and was thus terminated.
The Respondent filed a Writ before the High Court which held that the Respondent had only tried to molest the female employee and did not actually molest her. Thus, he was reinstated without back wages. He filed an appeal before the division bench for back wages which concurred with the findings of the single judge bench.
The Supreme Court found the findings of the High Court erroneous and misplaced. It was held that in such a case the testimony of the victim needs to be looked into and other facts such as the Respondent trying to sit close to the female employee after repeated protests and that the Respondent tried to hold her and touch her were indicative of the fact that the respondent indulged in Sexual Harassment. Thus the findings and the decision of the Disciplinary Authority was reinstated.
In another case the Court held that :
- There must be adherence and observance of the Vishaka Guidelines in letter and spirit.
- All the states must make amendments in their service rules that the inquiry report of the complaints committee must be considered as the inquiry report by the Disciplinary Authority.
- All organizations whether public or private must place mechanisms so that a witness or victim is not intimidated.
- If any person faced grievance of any sort with regard to non-compliance of the Vishaka guidelines, then the aggrieved person could move to the High court for necessary directions.
The Hindu Succession Act
A daughter is entitled to equal property rights under the amended Hindu Succession Act with retrospective effect. The daughter by birth becomes the coparcener in her own right in the same manner as the son. This act gives the right to all Hindu women to have a equal share in the ancestral property even after she is married.
On 11 August 2020, a three judge Bench of the Hon’ble Supreme Court delivered a landmark ruling in Vineeta Sharma Vs Rakesh Sharma and others, affirming the equal rights to daughters to coparcenary property. The apex court has observed that a daughter would be entitled to a share in the same manner as a son simply by virtue of her birth and being alive when the amended act came into force.
The Maternity Benefit Act
This ensures that women working in establishments are entitled to maternity and other benefits.
In Mrs. Neera Mathur V Life Insurance Corporation(LIC) of India, the petitioner Mrs. Neera Mathur was appointed on the post of an assistant in the Life Insurance Corporation of India. She had successfully cleared the written test and and interview and she was on probation. She was declared medically fit by an impaneled doctor of the LIC. She was initially on probation for 6 months which was supposed to be confirmed if her services were found satisfactory.
She applied for maternity leave during the probation and gave a medical certificate with regard to it. She delivered a baby and later on she was discharged from her service. In the order of discharge, no grounds were given as to why she was being removed.
She petitioned the High Court against the order of discharge which was rejected and hence she filed an appeal before the Supreme Court. It was found by the Supreme Court that there was nothing to show that the service period of probation was not satisfactory. Hence the order of discharge was set aside and it was held that the petitioner was entitled to reinstatement.
In another case, the Supreme Court held that the Maternity Benefit Act was passed by the parliament in order to provide facilities to a working woman in a manner, without the fear of being penalised for her absence from her workplace.
The Dowry Prohibition Act
This act prohibits the giving or taking of dowry. Under this act dowry includes property, goods, or money given by either party to the marriage, by the parents of either party or by anyone else in connection with the marriage.
If any person after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than five years and fine.
In Sher Singh v. The state of Haryana, the deceased was married to the appellant and it was alleged that he was making demands of dowry from the deceased. One day the family of the deceased was informed that she had committed suicide by consuming poison.
Although the Supreme Court absolved the accused persons of having committed acts of cruelty and making demands of dowry, it was held that the prosecution needs to only show and not prove that dowry-related demands were made. Once it is shown then the burden would be entirely on the accused to prove beyond all reasonable doubt that he was innocent.
This case is a departure from the settled principles and has made the dowry-related provisions even stringent. From this case on wards the burden is shifted on to the accused to prove that he did not commit the crime.
The Legal Services Authorities Act
An act to constitute legal services authorities to provide free and competent legal services to the provide free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Under this act women are eligible for free legal aid.
Free legal aid implies giving free legal service to the poor and needy people who cannot afford the services of lawyers to conduct a case or a legal proceeding before any court, tribunal or any other authority.
In the case of Hussainara Khatoon Vs State of Bihar, it was held that if any accused is not able to afford legal services then he has a right to free legal aid at the cost of the
state. It was further held that it is the duty of the state to see that the legal system promotes justice on the basis of equal opportunity for all its citizens.
The rules, laws, acts, rights, etc have no meaning if it is not followed in spirit and word. The people around the woman especially the parents have a huge responsibility to ensure that their daughter gets the place that she deserves. Charity begins at home is an age old adage. In Indian society, it is believed that the girl once married is an outsider to her parents and her parental home. In fact, parents must be the first to ensure that their child whether a daughter or a son deserve an equal treatment when it comes to property, education, selection of life partner or any aspect of their child’s life. When the daughter is treated equally at par with a son, the world at large treats her well and respects her, whether it is her own brothers, relatives, in-laws, husband or anyone else in the society. Also, there will be a remarkable reduction in crimes against women: domestic violence, dowry harassment, dowry demands and more. Even if she is subjected to any injustice, with the parents on her side, the daughter has tremendous strength to face the world no matter what.
It is important for every girl and woman to be aware of her rights. Exercising one’s rights in the hour of need is most important. Along with rights comes the responsibilities. Not only one is entitled to rights but alsothe responsibilities. Instead of being a responsibility on others, every woman must empower herself and if possible take responsibilities. This not only boosts one’s confidence but also saves one from discrimination and bias.
It is also important that the people around the woman know the rights that the woman is entitled to. This awareness and knowledge reduces the burden on our courts and lawenforcement authorities. There is a long way to go for a woman to get the place that she deserves. Nevertheless, the efforts of our responsible leaders, successive governments and law enforcement authorities have been commendable. Hope the efforts of the people are also equally appreciable and a day must dawn where we repeal all these laws and invest our valuable time constructively in nation building and call ourselves a progressed society and nation.