There is an inescapable need for special laws for women, children and handicapped having regard to poverty and development.
Women, children and handicapped (physically or mentally) constitute more than half of India's population. Their neglect or exploitation would impede the country's march towards development.
Women specially those falling in the category of living in extreme poverty, destitute women, those in conflict situations, affected by natural calamities, living in under-developed regions, the disabled, widows, elderly, single women in difficult circumstances, women heading households, those without employment, migrants, victims of marital violence, deserted women and sex-workers deserve special consideration and support.
Supreme Court of India proceeded to record its observations on the role of housewife in the Indian society. The occasion was the case titled Arun Kumar Agarwal v. National Insurance Company, MANU/SC/0507/2010 : (2010) 9 SCC 218. The court observed that despite the clear Constitutional mandate to eschew discrimination on grounds of sex in article 15(1) of the Constitution, in its implementation there is a distinct gender bias against women. Women are generally engaged in home making, bringing up children and also in the production of goods and services which are not sold in the market but are consumed at the household level. Thus, the work of women mostly goes unrecognized and they are never valued. What is ignored is the well-known fact that women make significant contribution at various levels including agricultural production by sowing, harvesting, transplanting and also tending cattles and by cooking and delivering the food to those persons who are on the field during the agriculture season. The services produced at home by the women for other members of household are an important and valuable form of production. However, the census of 2001 have categorized them as non-workers and equated with beggars, prostitutes and prisoners who, according to census, are not engaged in economically productive work.
As such, suitable legal provisions are required to help them getting their rightful place in national polity. The empowerment of women is a sine qua non for any substantial breakthrough in India's battle against poverty.
Relevant constitutional provision for this component of the population may be read in article 14 which concerns equality before law.
Further, article 15 is also of relevance and it deals with prohibition of discrimination on grounds of sex.
Article 15(3) is to be of particular significance in that it States that nothing in this Article shall prevent the State from making any special provision for women and children.
Further, Directive Principles of State Policy contain three articles which are relevant in this regard.
Excerpts from article 39 dealing with principles of policy
It is to be appreciated that:-
(a) That the citizens, men and women equally, have the right to an adequate means of livelihood.
(d) That there is equal pay for equal work for both men and women.
(e) That the health and strength of workers, men and women, and the tender age of children are not abused.
Article 42 calls for suitable provisions for just and humane conditions of work and maternity relief.
Article 44 mandates Uniform Civil Code for the citizens. The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. Such a provision would enforce a common regime in matters like inheritance, marriage, adoption and succession etc.
Apart from the Fundamental Rights and Directive Principles of the State Policy, these groups also find mention in article 51A(e), it shall be duty of every citizen of India to renounce practices derogatory to the dignity of women.
Gender bias is being debated throughout the globe. The basic structure of the Indian Constitution permits equality of status and thus negates gender bias. The most important issues with regard to women pertain to marriage, children, abortion, crime against women and inheritance.
1. Child marriages were the norms. According to a study by Washington based Population Reference Bureau, almost half of India's women are married before the age of 18. Thus, India's performance in preventing early marriage for girls is abysmal. Girls are seen as liabilities whose freedom could 'besmirch' family honour and as burdens whose dowries must be paid early on. Such a factual position is detrimental to development.
2. Inter-caste marriages were very rare.
3. Practice of sati was in existence.
4. Hindu Widows Remarriage Act, 1865 had been in the statute book for a long time.
5. Polygamy was permitted among Hindus till 1955.
Women's contribution to the national economy is quite significant. They form part of the workforce in diverse sectors. Yet much of their work is not documented or accounted for. So far they have been traditionally responsible for daily household work i.e., cooking, fetching water and looking after children.
A large number of women form part of the informal sector holding unskilled and low paying jobs.
1. Domestic servant
2. Small trader
3. Field labour
4. Artisan
Large unemployment throughout the country contributes to the shortage of jobs for women.
1. Rape
2. Kidnapping
3. Eve teasing
4. Indecent exposure
5. Violent abortion or done without the consent of women
6. Harassment at their place of work
This Act applies to all those who practice the Hindu religion as well as Buddhists, Jain and Sikhs and to any other person who is not a Muslim, Christian, Parsi or Jew.
In a significant decision relating to property rights of illegitimate children, the Supreme Court has remarked that section 16(3) of the Hindu Marriage Act points out that a child of a void or voidable marriage can only claim rights to the property of his parents, and no one else. Such children, will be at par with other legitimate children, and be entitled to all the rights in the property of their parents, both self acquired and ancestral; Jinia Keotin v. Kumar Sitaram Manjhi, MANU/SC/1192/2002 : (2003) 1 SCC 730.
The aforesaid statute granted ownership of all property acquired either before or after coming into force of the Act. It brought to an end their 'limited owner' status.
Any property, possessed by a Hindu female is now to be held by her as her absolute property. She is given full power to deal with it and dispose it of by Will as she likes.
The daughter is allotted the same share as is allotted to a son.
The Hindu Succession Amendment Act, 2005 was brought in to remove gender discriminatory provisions in the Hindu Succession Act, 1956. However, to some, inheritance laws are still gender skewed.
If a house is included within the inheritance in which the heirs of the deceased are living in, the heirs being both male and female, the female heir is not allowed to request partition until the male heir chooses to divide their respective shares (Section 23).
If a childless widow dies intestate, everything that belongs to her goes to her in-laws, and that includes all the wealth that she acquired through her own efforts. However, if a widower dies in a similar fashion, his property will go only to his parents and family, but not to his wife's parents. Such a legal regime is seen by some as 'double standards'.
1. Women are subjected to unequal property rights in agricultural land. Section 4(2) of the HSA allows for special State Laws to address the issues of fragmentation of agricultural holdings, fixation of ceiling and devolution of tenancy rights in these holdings.
2. Widow of a pre-deceased son and grandson are class-1 heirs, but the husband of a deceased daughter or grand daughter are not heirs.
3. The principle of representation goes upto two degrees in the male line of descent, but in the female lines of descent it goes only upto one degree.
4. There is no precise definition of ancestral property. A Hindu father can disinherit his wife or daughter by Will, in his self acquired property.
5. A woman's property rights vary depending on her religion, her marital status, the State she comes from and her tribal identity.
There must be stringent implementation of laws against child marriage, with administration, police and NGO, working together to enforce the law. Marriage registration must be the norm. Efforts must be made to change the mindset within families and communities by providing incentive for education of girl child. Education and vocational training options should be tailor made for girl child. The society, apart from the laws, will have to change its attitude, its mindset, on the issues of inheritance.
The genesis of the custom of dowry was a contribution by the wife's family or the wife herself, intended to assist the husband in bearing the expenses of the conjugal household. It is a deep rooted social evil.
It prohibits the request, payment, or acceptance of a dowry, as a consideration for the marriage.
An Act to prohibit giving or taking of dowry.
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 a marriage.
(b) By the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before, or any time after the marriage, in connection with the marriage of the said parties.
Gifts given without a pre-condition are not considered dowry, and are legal.
What does not constitute dowry
(a) Marriage presents given to the bride (without any demand).
(b) Marriage presents given to the groom (without any demand):
Provided a list of such presents is made in accordance with the Rules:
Provided further that such presents by the bride/or on her behalf are of a customary nature and not of excessive value having regard to the financial status of the giver.
The properties gifted to a girl before the marriage, at the time of the marriage, or at the time of giving farewell or thereafter. It is her absolute property with all rights to dispose at her own pleasure. Rashmi Kumar v. Mahesh Kumar Bhola, (1977) 2 SCC 397. Gifts given by the parents of the bride are considered 'stridhan'. It is the property of the woman, traditionally representing her share of her parent's wealth.
Civil - Domestic Violence Act, 2005
Criminal - Indian Penal Code
Section 304B
Section 406
Section 498A
Special - Dowry Prohibition Act, 2005
but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Offence Punishment
1. Giving or taking dowry Not less than five years Rigorous Imprisonment and Rs. 15,000 fine or the value amount of dowry, whichever is more
2. Demanding dowry Six months to two years Rigorous Imprisonment and upto Rs. 10,000 fine
3. Advertisement Six months to five years Rigorous Imprisonment or upto Rs. 15,000 fine
Used for recovery of 'stridhan' from the husband and his family. Failure to return 'stridhan' is viewed as criminal breach of trust. When one spouse refuses to return stridhan to the wife, it constitutes criminal breach of trust. It is a continuing offence in the sense every demand and its refusal gives fresh starting point for limitation.
Provisions relating to this offence were inserted with a view to combat the increasing menace of dowry deaths. Dowry death means death caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of marriage.
The Supreme Court takes a serious view in the matters of crime against women and gives harsh punishment. The case of Rajbir v. State of Haryana, MANU/SC/0967/2010 : AIR 2011 SC 568 related to the husband having been found guilty of murdering his pregnant wife for demanding cash amount barely six months after their marriage. He was awarded life sentence under section 304, IPC apart from sentences under other sections. The High Court had reduced the sentence to ten years rigorous imprisonment. The Supreme Court held that the High Court was not justified in reducing the sentence of the husband as it appeared to be a case of barbaric and brutal murder.
Husband or relative of husband of a woman subjecting her to cruelty. This section was introduced in 1983 to protect married women from being subjected to cruelty by the husband or his relatives. A punishment extending to three years imprisonment and fine has been prescribed.
Cruelty has been variously defined to mean:
(a) Any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or to danger to life, limb or health (whether mental or physical) of the women, or
(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her meet such demand.
1. Non-bailable
2. Non-compoundable
3. Cognizable.
There is a large opinion in favour of making the said offence compoundable with the permission of the court. Some States e.g., Andhra Pradesh have already made it compoundable.
It is felt that a review of the provision is called for. First, exaggerated versions of the incidents are reflected in a large number of complaints. There is a common tendency to implicate husband and all his immediate relations. There have been frivolous complaints or allegations. Secondly, the women especially from the poor strata of the society living in rural areas rarely take resort to the provision. Thirdly, when the members of a family are arrested and sent to jail without even the immediate prospect of bail, the chances of amicable reconciliation or salvaging the marriage are lost once and for all. The long and protracted criminal trials lead to acrimony and bitterness in the relationship among the family members.
There exists a need to create awareness of the provisions specially among the poor and illiterate living in rural areas who often have to face the drunken misbehaviour and harassment of the women. More than the women, the men should be sensitized of the penal provisions of law protecting the women against ill-treatment at home. The easy access of aggrieved women to the taluka and district level, legal Service Authorities and/or genuine NGOs with trained counsellors should also be catered for. This would require a well planned public awareness campaign.
Certain domestic relationships entail specific legal responsibilities.
Obligation of a husband to maintain his wife arises out of the status of marriage.
An Act to provide for more effective protection of the rights of the women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.
Under this Act an 'aggrieved person' means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.
Any act, omission or commission if it
(a) harms, injures or endangers the health, safety, life, limb or well being, whether mental or physical includes causing physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse.
(b) Coerce her or any other person related to her to meet any unlawful dowry demand.
(c) Threatens.
For the person of determining whether any act, omission, commission or conduct of the respondent constitutes 'domestic violence' under this section, the overall facts and circumstances of the case shall be taken into consideration.
Any person who has reason to believe that an act of domestic violence has been, or is being, or is likely to be committed, may give information about it to the concerned Protection Officer.
The State Government shall, by notification, appoint such number of Protection Officers in each district as it may consider necessary.
The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court. The Magistrate shall endeavour to dispose of every application within a period of sixty days from the date of its first hearing.
Remedy may be in the form of issue of protective orders including restrain, monetary compensation and residence orders.
It is a civil remedy but violation of protection orders results in criminal penalties including imprisonment.
1. Gross misuse of IPC section 498A. See Sushil Kumar Sharma v. Union of India, MANU/SC/0418/2005 : (2005) 6 SCC 281. The Supreme Court opined that investigating agencies and courts are to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations.
2. Gender Bias. The DV Act is silent on cruelty or extortion against husband.
3. Definition of dowry and streedhan one word lacks precision.
4. Presumption of guilt.
5. Duplication
(a) Dowry death is viewed same as murder
(b) Demand for dowry is extortion
6. HR violation. Impounding of passport
1. An attempt to recognise domestic abuse as a punishable offence.
2. Extend its provisions to live in relationships.
3. Emergency relief to victims in addition to legal recourse.
1. Women
2. Children
The matter of cruelty in matrimonial relationship was one of the matters before the Supreme Court in Ravi Kumar v. Julmi Devi, MANU/SC/0102/2010 : (2010) 4 SCC 476. The court held that cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Cruelty in matrimonial cases can be of infinite variety - it may be subtle or even brutal and may be by gestures and words.
1. Any woman, who is or has been in a domestic relationship with the respondent.
2. With whom she is in a shared household and who has subjected her to domestic violence.
Supreme Court had held in Chanmuniya v. Virendra Kumar Singh Kushwaha, MANU/SC/0807/2010 : (2011) 1 SCC 141 that a broad and expansive interpretation should be given to term 'wife' to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a pre-condition for maintenance under section 125.
In its decision in D. Valuswamy v. D. Patchaiammal, MANU/SC/0872/2010 : (2010) 10 SCC 469, the Supreme Court came to the conclusion that 'relationship in the nature of marriage' or 'live-in relationship' is akin to a 'common law marriage' and their essentials are also same.
Respondent under section 2(w) would include:-
1. Any adult male member who has been in a domestic relationship.
2. Can also be a relative or male partner e.g., father-in-law, mother-in-law or even siblings of the husband.
Can file a complaint against a parent or parents who are tormenting or torturing them, physically, mentally or economically.
A husband of an aggrieved wife cannot prohibit or restrict the wife continued access to resources/facilities to which she is entitled by virtue of the domestic relationship including access to the shared household. Her jewellery or money cannot be taken nor can she be thrown out of the house.
The DV Act does not have enough teeth to nail the respondents and perpetrators of domestic violence. Further, the supporting infrastructure like counselling, medical facilities and residence facilities are so far not satisfactory. The Protection Officers lack proper training. However, despite the room for improvement, the Act has made many path breaking provisions.
What all does the above term include? It covers provision for food, clothing, residence, education, medical attendance and treatment apart from reasonable expenses for an unmarried daughter.
Provides a right of maintenance not only to the wife and dependant children, but also to indigent parents and divorced wives (Section 125).
Section was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. Under section 125(1)(a), a person, who, having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself can be asked by the court to pay monthly maintenance to her not exceeding five hundred rupees.
Indigent means poor, needy.
Alimony relates to the right to claim financial support for post-divorce maintenance. It is spousal support but she is not entitled to it if she elopes with an adulterer or wilfully leaves her husband without any just cause for so doing.
Who is entitled to maintenance? Following, who are unable to maintain themselves.
1. Wife
2. Legitimate or illegitimate minor child
3. Father or mother.
'Wife' includes a divorced woman who has not remarried. "Wife" means a wife as defined, irrespective of the religion professed by her or by her husband.
Claim of wife etc., depends on the husband having sufficient means.
Further, claim for all is limited to Rs. 500 per month.
A Magistrate of the First Class may, upon proof, order such person to pay a monthly allowance at the rate not exceeding Rs. 500 on the whole.
In Captain Ramesh Chander Kaushal v. Veena Kaushal, MANU/SC/0067/1978 : (1978) 4 SCC 70, the Supreme Court pointed that the section 125 is a measure of social justice specially enacted to protect and inhibit neglect of women, children, old and infirm and falls within the constitutional sweep of article 15(3) reinforced by article 39.
There is no period of limitation prescribed for making an application for maintenance.
No wife shall be entitled to receive an allowance from her husband, if she is living in adultery, or without any sufficient reason she refuses to live with her husband, or
(a) they are living separately by mutual consent.
(b) she has converted herself into any other religion and thereby ceasing to be a Hindu.
Remedy is speedy and cheap. It comes as a summary relief. However, divorced wives who have received monetary benefit under customary personal laws are not entitled to a maintenance claim under CrPC. The Supreme Court has held that the two expressions 'maintenance' and 'support' in the Special Marriage Act, 1954 are comprehensive and of wide amplitude and they would take within their sweep medical expenses; Rajesh Burman v. Mithul Chatterjee, MANU/SC/8290/2008 : (2009) 1 SCC 398.
The relief of maintenance is considered an ancillary relief. It is available only upon filing for the main relief like divorce, restitution of conjugal rights or judicial separation etc.
The era of feminist campaigns and spread of education among women have contributed to the growing applicability of alimony in divorce cases.
According to many, the issues or areas warranting reforms are not really Islamic issues but are certainly Muslim societal issues.
1. Marriage is a legal bond and a social contract between a man and a woman.
2. Nikah is the most common form of marriage. Though a marriage is aimed at being permanent, but can be terminated by
(a) Husband - by engaging in divorce process;
(b) Wife - by seeking a divorce.
3. A legal contract could be signed when entering the marriage.
4. The position as regards permission from wali is not uniform but is as indicated below:-
(a) Sunni - Compulsory;
(b) Shia - Strongly recommended but not compulsory.
Mahr or Dower is a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage. The word 'consideration' is not used in the sense in which it is used in the Contract Act and Dower is an obligation imposed upon the husband as a mark of respect for the wife. The amount of Mahr is usually split into two parts, one of which is called prompt; which is payable on demand, and the other is called 'deferred', which is payable on the dissolution of the marriage by death or by divorce.
Temporary or a fixed time marriage. It has a pre-set time period for the marriage. The couples do not inherit from each other.
Husband and wife give up several rights by their own free will, e.g., living together, the wife's rights to housing and maintenance money.
1. The status of women in Islam is one of equality and honour.
2. The concept of gender equality is stressed by the non-superiority of either sex over the other.
1. To marry a woman who is a Mushrite i.e., who worships idols or associates with other deities with God.
2. Not permissible for Muslim women to marry non-Muslim men.
Demand for formulation of legally binding 'model' marriage contracts or nikah-namahs that contain guarantee, equality and justice within the marriage and a fair deal for the women in case of divorce.
Bhartiya Muslim Mahila Andolan (BMMA) has produced a model document of the following:-
- Nikah Namah
- Iqrar Namah
1. Special courts presided by Muslim judges well-versed in Islamic law need to be set up.
2. Motion for divorce (Khula) moved by women should be accepted even orally as is the position in Indian law exampled by section 200, Cr PC.
3. Payment of Mahr. A charge on the husband's estate should be created and enforced like a government debt (RC or Revenue Certificate). In case of default on account of Mahr beyond seven years, against husband's who have capacity to pay.
1. The deed would be subject to the exclusive jurisdiction of secular courts. Located in or near the place where bride ordinarily resides.
2. Groom and bride to clearly specify their marital status.
3. Specify the amount and different forms in which the husband undertakes to pay the mahr.
1. Violations of the Act carry a five year jail term and a fine.
2. The offences under the Act are non-bailable and non-compoundable.
3. All offences are cognizable when police may arrest without a warrant.
4. Muslim women's right for dissolution of marriage.
5. Divorce regarded as a natural corollary on marital rights.
An Act to consolidate and clarify the provisions of Muslim Law relating to suits for dissolution of marriage by women under Muslim Law and to remove doubts as to the effect of renunciation of Islam by a married Muslim women on her marriage tie.
Grounds for divorce.
There are nine grounds on which a Muslim women could seek divorce in the court.
1. No whereabouts for four years.
2. Neglect or failed to provide maintenance for two years, or taken an additional wife.
3. Sentenced to seven or more years Rigorous Imprisonment.
4. Failed to perform martial obligations for three years.
5. Impotency
6. Insane or leprosy or venereal disease
7. If married before 16 years and repudiated marriage before 18 years
8. Cruelty
9. Any other valid ground under the Muslim Law.
This law did not curb the man's right to divorce his wife orally and unilaterally.
1. Did not curb men's right to unilateral oral divorce.
2. No procedure for
(a) Recovery of Mahr
(b) Post divorce maintenance
(c) Custody of children.
1. Polygamy
2. Oral unilateral divorce
3. Low mahr amounts
4. Lack of maintenance
Shah Bano's case, MANU/SC/0194/1985 : (1985) 2 SCC 556 wherein the Supreme Court invoked section 125 of the CrPC, which applies to everyone regardless of caste, creed or religion. Section 125 is truly secular in character. Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion. Section 125 overrides personal law, if there is any conflict between the two. It ruled that Shah Bano be given maintenance money.
The above case made the payment of maintenance only vide the ex-husband. It diluted the so called secular judgment of the Supreme Court and, in reality, denied even utterly destitute Muslim divorcees the right to alimony from their former husbands.
This Act upheld the Indian practice of pronouncing the effective divorce thrice on one and the same occasion. The same may be a practice amongst Muslims in India while being in variance with Koranic law. According to some, post independence Muslims in India are yet to make any serious attempt to codify diverse practices of its different schools of thought and jurisprudence.
A study of Supreme Court decisions on Mulsim Law and women's rights give rise to a number of larger issues which require extensive analysis. Is the interpretation of religious texts and verses the sole prerogative of the religious leaders of the community? Do the courts have any role? Does the judiciary have an obligation to interpret religious texts and point out rights of women from the same? Would pronouncing judgments on Muslim Law, especially pertaining to rights of Muslim Law amount to interference with Muslim Law?
Islamic judicial courts have been set up to settle disputes of Muslims in the matters of inheritance, marriage, divorce etc. They were established to save the litigants from costly and time consuming procedures and for amicable resolution of disputes. Fair and transparent decisions alone can inspire trust and confidence of the parties to dispute who usually accept the verdict of the Shariah court.
A term used in family law to define legal guardianship of a child under the age of 18.
Legal battles are fought between parents for child custody, an unfortunate aftermath following a marital break-up.
1. During divorce, or
2. Marriage annulment proceedings.
Legal custody means that either parent can make decisions which affect the welfare of the child, such as medical treatment, religious practices, education and insurance claims.
1. To avoid fight between parents to get access to child.
2. To cater for suitable looking after including emotional and material support.
3. To guard against neglect, abuse or exploitation, specially of girl child.
4. To facilitate proper growth and development of child.
Visitation Rights are given to non-custodial parent. Usually, both parents continue to share legal child custody but one parent gains physical child custody.
Paramount consideration is the welfare of the child.
The custody of a child upto the age of five years should ordinarily be with the mother.
In respect of older children, the male children above the age of 16 years and female children above the age of 14 years should not ordinarily be compelled to live in the custody to which they object.
Welfare has to be taken in its widest sense, and must include the child's moral as well as physical well being and has also regard to the ties of affection.
A determination of what is best for any particular child requires a case by case examination of both the needs of the child and the advantages presented by those seeking custody.
It is the child who suffers because of ego problems of parents.
In Bharatha Matha v. R Vijaya Renganathan, MANU/SC/0400/2010 : (2010) 11 SCC 483, the Supreme Court while commenting on section 16 of the Hindu Marriage Act, 1955 held that it intends to bring about social reforms, conferment of social status of legitimacy on a group of children, otherwise treated as illegitimate, as its prime object.
The aim of family courts is to form a congenial atmosphere where family disputes are resolved amicably.
Law Commission of India in its 59th Report, 1974 suggested that rules of procedure to be followed by Family Courts should be much simpler and radically different from the rigid rules of procedure and evidence.
Family Courts were established to amicably settle family disputes.
The above statute is a social and beneficial legislation.
A Family Court has been visualised for every city or town with a population exceeding one million.
1. The courts are meant to promote conciliation.
2. Secure speedy settlement of disputes relating to marriage and family affairs.
3. Non-adversial and multi disciplinary approach.
4. Expected to adopt a radically different approach.
5. Use of gender sensitized personnel including judges, social workers and other trained staff.
Section 5 lays down a role for those.
1. Engaged in social welfare
2. Promoting welfare of the family
3. Working in the field of social welfare
4. Any other person, who would enable it to exercise its jurisdiction more effectively.
Jurisdiction of these courts would thus be both Civil (section 7) and Criminal [section 7(2)]
Assistance of Counsellors has been visualized under section 6.
Nature of proceedings undertaken by the Family Courts is specified in section (1). These cover the following.
1. Marriage
(a) Nullification of marriage
(b) Restitution of conjugal rights
(c) Judicial separation
(d) Dissolution.
2. Property relating to the marriage
3. Circumstances arising out of marital relationship
4. Maintenance
5. Custody or access to any minor.
Criminal Jurisdiction is attracted under section 7(2) of the Act which relates to order for maintenance of wife, children and parents, under Chapter IX of the
Cr PC.
Procedure to be followed by the Courts is covered under section 9. The main points are:-
1. Authorised to lay down its own procedure in order to arrive at a settlement in respect of the subject-matter of suit or proceedings.
2. Duty of the court to bring about reconciliation between the parties at dispute.
Having regard to the sensitive nature of subject-matter, in camera proceedings have been indicated in section 11 of the Act.
Assistance of medical and welfare experts may be sought by the Courts in accordance with section 12 of the Act.
Judgment procedure is covered under section 18. The final verdict should take the form of a concise statement of the case, the point for determination of the decision thereon, and the reasons for such decision.
The provision relating to an appeal against the decision of a Family Court is indicated in section 19 of the Act. The appeal would lie to the High Court, within 30 days from the date of the order/decree. No appeal is permissible against an interlocutory order.
1. Indifferent counselling and conciliation services. Some of the FCs do not have any counsellors.
2. Absence of requisite changes in substantive laws does not lead to a smooth functioning.
3. FCA does not explicitly empower the court to grant injunctions preventing violence or ouster of violent husbands.
4. Orientation and attitude of FC judges does not contribute to work towards the objective of the underlying statute.
5. Different High Courts have framed different rules of procedure and thereby resulting in lack of uniformity.
6. These courts have no power to decide issues of contempt.
So far 153 Family Courts are operative in various States and Union Territories. But no Courts have been set up in the States in Haryana, Arunachal Pradesh, Mizoram, Meghalaya, Chandigarh and Andaman & Nicobar Islands.
With increase in incidence of divorce, it appears essential to explore the informal modes of dispute resolution. Existing modes of marital disputes settlement fall into following two major modes:-
1. Ordinary Civil Courts Crime Against Women Cell
2. Family Courts NGOs
3. Lok Adalats Panchayats
4. Legal Aid Cells Imrat Shariah
In India, some families would rather have a son than a daughter. So when it is possible to determine the sex of the child, many women do the test to find out the sex of the foetus. In many cases they are forced to do the test and then made to kill the child if it is a girl.
Human beings have 23 pairs of chromosomes, that is, 46 single chromosomes. Of these 23 pairs, 20 pairs are non-sex chromosomes - also known as autosomes. The remaining one pair forms sex chromosomes which determine one's gender.
Predetermining the sex of the foetus and aborting the female foetuses is widespread in India. There are thousands of female foetuses aborted every year. The sex ratio has been gradually falling and there is nothing natural about it. The sex selection is being practiced unethically. The parents want boys because the society still regards a son as an 'asset' and a daughter a 'liability'. Gender inequality lies at the core of the female foeticide. A district by district study of the sex ratio trends in India derived from comparing 2011 and 2001 census data discloses that while on one hand sex selective abortion has continued and even spread to some new regions, other parts of the country have seen a reversal of the trend. Thus, child sex ratio has plunged in 431 districts but improved in 149. It is Jammu & Kashmir, Nagaland and Manipur which show alarming decline in numbers. The first critical step is to challenge the patriarchal attitude that welcomes boys and undermines girls. There is need to create a culture that celebrates both genders equally.
National Sex Ratio according to one survey is 933 females to 1000 males. However, it is only 927 females to 1000 males in age group under six years old. It implies that there is a clear indication of fewer girls alive as compared to boys in the same age group.
In Haryana, the situation is more alarming. The State has 861 females are to 1000 males whereas it is only 820 females to 1000 males in the under six category
Foeticide means the act of killing the foetus.
Sex determination is the process through which it can be determined whether the child growing in the mother's womb is a male or a female. One of the main reason for gender determination test is to abort an unwanted child. Sex determination is against the spirit of the Indian Constitution which guarantees equality of sexes while also professing a special status for the females.
The Indian Penal Code makes causing an abortion an offence even it is brought about by the women herself unless it is done to save the life of the mother. Under section 312, the offence is punishable by imprisonment for a period of three years, by fine or by both.
MTP was enacted with a view towards containing the size of the family. The express purpose of the Act was to act as a population control mechanism. It stipulated that an abortion may lawfully be done in qualified circumstances. Accordingly, the termination of pregnancy was allowed by a Registered Medical Practitioner.
Continuance of the pregnancy (which at the time must not exceed twelve weeks), and
· It poses a grave risk to mother's mental or physical healths.
· There is a substantial risk that child would suffer from such mental or physical abnormalities as to be seriously handicapped.
Where the pregnancy is between 12 to 20 weeks the opinion regarding the medical necessity for an abortion must be formed by two medical practitioners. The provisions relating to MTP allow abortion in case of contraceptive failure (only in case of married mothers).
A pregnancy caused by rape is presumed to constitute a grave injury to mother's mental health.
It was subsequently amended into PC PNDT Act, 2003.
It limits the use of prenatal diagnosis to a list of selected congenital conditions and prohibits using these techniques for sex determination and disclosure of the sex of the foetus. It has introduced a blanket ban on sex determination, before and after conception. It also prohibits any advertisements relating to pre-natal determination of sex.
Rate of conviction under PCPNDT Act has remained abysmally low with the first conviction under the Act only happening in 2006. Enforcement of law is weak and there are loopholes in the law that allow clinics and doctors to continue to perform sex determination tests.
The problem of failing sex ratio needs to be addressed at two levels, first, the mindset of people about having a girl child needs to change, second, there needs to be greater effort on the part of the government to book the guilty.
Women activists uphold the right to abortion while decrying the practice of female foeticide. The law on abortion should be founded on the principle of primacy of women over her own body. It is an essential element in ensuring that women enjoy equal rights in the society.
The policy raises fundamental questions should unwilling parents be forced to have children. In case they are, how would they treat them. The lopsided sex ratio is not to be favoured but the quality of life of a girl child should not be permitted to be sacrificed. The key to saving babies is manifold in this approach. It may require empowering mothers, ensuring female education and providing equal economic opportunities to both the sexes. The medical fraternity too has a role in preventing female foeticide. Pregnant women should be discouraged from undergoing ultrasound tests for predetermination of sex with the intention of termination of pregnancy. NGOs too can play a meaningful role to encourage women to fight against the evils of female foeticide, gender bias, illiteracy and child labour which all impede development. Other options include mandatory counselling to women or couples who seek abortion. This would be a non-intrusive aid to judge the reason why abortion is being sought. A proactive approach on the issues of dignity of girl child would be to cut down high spendings on marriages in the form of dowry, extravagant ceremonies and entertainment of large number of guests.
Omission to enforce proper steps for correcting skewed sex ratio can, in the long run, have disastrous demographic consequences for the community and for the nation.
By amendment to PNDT Rules, the authorities have enforced a few stringent measures to curb sex selection. Under the new rules introduced during June 2011, all unregistered ultrasound machines and scanners that can determine the sex of an unborn child will be seized and the 'service provider' will be liable for both a fine and imprisonment. The offender has to pay a fine of Rs. 10,000 and will also face a maximum three year jail term. If there is a recurrence of offence, then the guilty is liable to pay upto Rs. 50,000 as fine as well as undergo upto five years of imprisonment.
The past decades have seen an increase in the female work force. This is so for both the organized and unorganized sector. Article 42 of the Constitution of India directs the State to make provisions for maternity relief besides securing just and humane conditions of work for women.
An Act to regulate the employment of women in certain establishment for certain period before and after child birth and to provide for maternity benefit and certain other benefits.
Section 2 relates to the Application of the Act. It applies in the first instance to:
1. Factory
2. Mine
3. Plantation
However, a State Government, with the approval of the Central Government may apply it to any other establishment, industrial, commercial, agricultural or otherwise.
Section 4 makes it clear that employment of, or work by women is prohibited during the six weeks immediately following the day of the delivery or her miscarriage.
Right to payment of maternity benefit is indicated in section 5. Every woman is entitled to the payment of maternity benefit at the rate of average daily wage for the period of her actual absence.
Section 11 deals with nursing breaks during daily work till the child attains age of 15 months.
Leave for miscarriage is an entitlement under section 9 with wages at the rate of maternity benefit.
Payment of Medical Bonus is to be governed as provided under section 8.
Section 12 makes it unlawful to discharge or dismiss a woman during absence or pregnancy.
Appointment of Inspectors for the purpose of this Act has been provided under section 14.
Section 21 relates to penalty for contravention of Act by employers. The section carries a punishment of three months rigorous imprisonment, or upto Rs. 500 fine, or both.
Women at the reproductive stage are exposed to special risks during pregnancy and child bearing, and mortality and maternal morbidity are factors which require special consideration.
The Act serves as a protective shield as it restricts termination of service of a pregnant women employees except on grounds of misconduct. These provisions contribute significantly in dignifying motherhood.
Poverty or the inferior status of women at places of their work often leads to their sexual harassment. Usually the harasser is in a position of power or authority over the victim. Such dominance may be due to differences in age, or social, political, educational or employment relationships.
Sexual harassment is intimidation, bullying or coercion of a sexual nature, or the unwelcome or inappropriate promise of rewards in exchange for sexual favours. It includes a range of behaviour from seemingly mild transgressions and annoyances to actual sexual abuse or sexual assault. The actions take the form of a whole range of subtle and non-subtle persistent behaviours.
Work place may be any place where working relationship exist or where employer/employee relations exist.
1. Sexually coloured remarks.
2. Physical contact and advances.
3. Showing pornography.
4. A demand or request for sexual favours.
5. Verbal/non-verbal conduct being sexual in nature.
1. Superior authority.
2. Weak or mild personality of the female employee.
3. Often absence of any witness to substantiate complaint of women employer.
4. Apprehension on her part that she may not be believed.
The absence of any specific law against sexual harassment at work place in India is a major challenge. Retaliation and backlash against a victim are very common, particularly a complainant.
(a) Section 354. Assault or criminal force to a women with the intent to outrage her modesty.
(b) Section 509. Word, gesture or act intended to insult the modesty of a woman.
Sexual harassment has severe adverse affects on organizations. It causes decreased productivity and greater team conflict. The victims usually have decreased job satisfaction. Their resignations result into loss of staff and expertise. They may usually indulge in increased absenteeism. It may also bring about indiscipline while also undermining ethical standards. The victims lose respect for and trust in their seniors. Thus, sexual harassment at work place would seriously impede and retard growth and development of the organizations and society.
Vishaka v. State of Rajasthan, MANU/SC/0786/1997 : (1997) 6 SCC 241
In this case, a social activist, Bhanwari Devi was alleged to have been brutally gang raped in a village in Rajasthan. The incident revealed the hazards to which a working woman may be exposed and the depravity to which sexual harassment can degenerate.
Sexual harassment has been viewed by the Supreme Court of India as human rights violation and gender based systematic discrimination that affects women's right to life and livelihood. Guidelines were framed for employers to redress and prevent sexual harassment at work place. The Supreme Court judgment laid down guidelines, prohibiting sexual harassment. These guidelines are legally binding and must be enforced.
Apply to both organised and unorganised work sectors and to all women, whether working part-time, on contract or in voluntary/honorary capacity. However, the private sector is yet to implement these guidelines.
Convention for the Elimination of all forms of Discrimination Against Women was ratified by the Government of India on 25 June, 1993.
To provide protection against sexual harassment of women at work place and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.
The draft Bill provides for compensation to the aggrieved woman.
The effort is still at the Bill stage. According to the draft Bill, an aggrieved woman may make a complaint of sexual harassment at work place to the committee in writing.
1. Assailed as legal terrorism by feminist organisations.
2. Demand that it be made gender neutral.
3. It is a duplication of the IPC.
4. New extortion industry.
Women domestic workers have not been included within the ambit of protection of women against sexual harassment at work place. The logic given is inability to establish codes of behaviour within homes and the fact that an incident in the confines of a home is not likely to bear any witnesses, any complaint by a domestic workers would be one person's word/perception against another's. However, the other view of the matter is that a home is the work place for domestic workers. Unorganised as they are, the Bill would have offered them a legal recourse in the event of harassment.
"Misconduct with colleague outside office will also be interpreted as sexual harassment at work place" according to Delhi High Court.
The traditional Indian mindset towards women and other weaker sections of society is yet to change. Prostitution is exchange of sexual services for money.
Trafficking in women and children is the gravest form of abuse and exploitation of human beings.
Article 23 of the Constitution prohibits trafficking in any form. Immoral traffic is directly related to poverty. A large number of sex workers are driven to earn their livelihood by indulging in prostitution. Immoral traffic impedes development in a variety of ways. Many prostitutes are said to be under aged and have been drawn into sex trade at a young and impressionable age. The girls are often exploited by the middle men and pimps. They are an easy target for alcohol and drug abuse on one hand and growing HIV/AIDS menace on the other. Immoral traffic is undisputedly repugnant to human dignity and self respect of the individual concerned.
Prostitution is legal in India. What is illegal is soliciting sex in a public place or keeping a brothel.
As long as it is done individually and voluntarily, a woman can use her body's attributes in exchange for material benefit. Trafficking necessarily involves movement/transportation, of a person by means of coercion or deceit, and consequent exploitation leading to commercialization. The abusers, including the traffickers, the recruiters, the transporters, the sellers, middle men, the buyers, the customers etc., all exploit the vulnerability of the trafficked person.
Number of sex workers in India is estimated to be around 20 million.
The Suppression of Immoral Traffic in Women and Girls Act, 1956 (Act No. 104 of 1956) presented the legal regime against indulgence in immoral traffic. It was later substituted by the Immoral Traffic (Prevention) Act, 1986.
ITPA colloquially called PITA is thus an amendment to SITA.
Brothel as defined under section 2(a) would include any house, room, conveyance or place or any portion of any house, room, conveyance or place, which is used for purpose of sexual exploitation or abuse for the gain of another person or for mutual gain of two or more prostitutes.
Prostitution has been given a meaning under section 2(f) to refer to the sexual exploitation or abuse of persons for commercial purposes and the expression 'prostitute' shall be construed accordingly.
Public place as defined under section 2(h) means any place intended for use by, or accessible to, the public and includes any public conveyance.
The above Act lists out certain offences as indicated below:-
1. Keeping a brothel or allowing premises to be used as a brothel.
2. Living on the earnings of prostitution.
3. Procuring, inducing or taking a person for the sake of prostitution.
4. Detaining a person in premises where prostitution is carried on.
5. Prostitution in or in the vicinity of public places.
6. Seducing or soliciting for purpose of prostitution.
7. Seduction of a person in custody.
Section 10A relates to detention in a corrective institution.
Offences to be cognizable as provided under section 14.
Search without warrant can be carried out as enunciated in section 15.
Section 21 provides that Protective Homes and Corrective Institutions are to be set up by the State Governments.
Following three sections of the Indian Penal Code are relevant in this regard. Section 366A makes it punishable to procuration of a minor girl (below 18 years age) from one part of the country to another.
Section 366B makes importation of a girl below 21 years of age a crime, if there is an intent that she may be or knowing it to be likely that she will be, forced or seduced to illicit intercourse with another person.
Section 374 provides punishment for compelling any person to labour against his Will.
Why prostitutes continue with their profession?
1. Poverty and unemployment.
2. Lack of proper re-integration services.
3. Lack of options.
4. Stigma and adverse social attitudes.
5. Family expectations and pressure.
6. Resignation.
7. Acclimatization to life style.
1. It is ironical that while the women are apprehended from known red light areas the brothel keepers and pimps are left untouched.
2. There is as yet no definition of 'trafficking' or 'trafficker'.
3. The Act focuses on establishing the purpose of prostitution for every offence. The same takes away attention from trafficking.
It would, therefore, be meaningful, if rehabilitation programmes are launched and implementation machinery is set up not only to eradicate the fertile source of prostitution but also for successful rehabilitation of the fallen women who are the victims of circumstances to regain their lost respect.
Dealing with the State's obligation for eradication of prostitution, the Supreme Court held in Gaurav Jain v. Union of India, MANU/SC/0789/1997 : AIR 1997 SC 3021 that counselling, cajoling and coercion are necessary for effectively enforcing the provisions of Immoral Traffic Prevention Act and Juvenile Justice Act.
A new Bill dealing exclusively with sexual offences against children has been cleared by the Union Cabinet. It provides for a jail term upto seven years and a fine of Rs. 50,000 for such crimes. The Protection of Children Against Sexual Offences Bill, 2011 will cover all new aspects of sexual offences against children not covered elsewhere.
There are a number of legal issues. Why does India continue criminalizing a profession which has been legalized in many other nations? Whether a prostitute is an offender or a victim? Does the problem of immoral trafficking require a practical or a puritan approach.
It is for consideration that the laws must be redesigned in light of international legal instruments e.g., Convention against Torture and Other, Cruelty. Inhuman or Degrading Treatment and the Convention against Transnational Organised Crime. Secondly, rather than having State laws on the subject, a national law should be brought in place. Punishments prescribed for trafficking must be stringent. Special task force must be trained to help and counsel the victims in rehabilitation and resettlement. Gender-sensitive implementation of laws is of prime need.
This refers to the murder of a family or social group by other members, due to the wider belief of the community at large that the victim had brought dishonour upon the family or community. Honour killings are directed mostly against women and girls. The targeted person is believed to have brought 'shame' on the family name. The apparent 'shame' in most of the cases would be said to be caused by the target having a relationship that the family considered to be inappropriate. Such incidents are widespread in India, but are more prevalent in Northern India. There is no specific Act to deal with cases of honour killing. The policy makers are planning to bring in a legislation to deal with cases of 'honour killings'.
An intention to kill somebody can't be justified on any ground whatsoever. In June, 2010 taking cognizance of a Public Interest Litigation, filed by an NGO Shantivahini, Supreme Court of India has issued notice to the Central Government and nine State Governments to make law to protect young couples from honour killing.
The Supreme Court, while dealing with a matter involving honour killing, pointed out that in a death sentence matter it is not only nature of crime but background of criminal, his psychology, his social conditions and his mindset for committing offence are also relevant. Herein, murders were outcome of social issues like marriage with person of so-called lower caste. Caste is a concept which grips a person before his birth and does not leave him even after his death. Vicious grip of caste, community, religion, though totally unjustified is a stark reality. Psyche of offender in the background of social issue like inter-caste/community marriage, though wholly unjustified, has to be considered. Although murders were brutal, however, were not diabolic murders nor had murderers acted in depravity by disfiguring bodies. Hence, death sentence was not justified.
Dilip Premnarayan Tiwari v. State of Maharashtra, MANU/SC/1884/2009 : (2010) 1 SCC 775.
Protection homes are to be set up under section 9 of the Children's Act, 1960. These are meant for reception of neglected children. The inmates are to be provided not only with accommodation, maintenance and facilities for education but also facilities for development of character, abilities and training to protect against moral danger or exploitation.
In Chandrika Prasad Yadav v. State of Bihar, MANU/SC/0213/2009 : (2009) 4 SCC 415, the Supreme Court took note of police inaction/failure in finding/investigating case of missing/kidnapped minor girl from poorly managed State women's protection home, inadequately staffed/secured with improperly maintained registers. The court directed Chairman, Human Rights Commission of the State to conduct a proper and detailed inquiry into whole episode. The Chief Secretary of the State was directed to submit a report regarding proper maintenance, governance, security measure taken with regard to protection home concerned and regarding reasons behind police inaction and status of investigation.
Indira Gandhi National Widow Pension Scheme (IGNWPS) is one of the schemes introduced by Government of India under National Social Assistance Programme (NSAP). The objective of IGNWPS is to give financial assistance @ Rs. 400 per month to all the identified pensioners who are widows of the age group of 40 years - 64 years and from families which are below the poverty line. The coverage will be universal and there shall not be any quota at any level. An applicant shall get the pension till she attains the age of 65 years or till her re-marriage. The applicant has to produce her bank/post office account at the time of submission of her application. Monthly pension will be disbursed through the bank accounts/post office accounts of the pensioners.
Disability means the loss or limitation of opportunities that prevents people who have impairments from taking part in the normal life of the community on an equal level with others due to physical and social barriers.
1. Blindness
2. Low vision
3. Cerebral palsy
4. Leprosy
5. Leprosy cured
6. Hearing impairment
7. Locomotor disability
8. Mental illness
9. Mental retardation
10. Multiple disabilities.
Number of disabled persons in India exceeds 2.19 crores as per the 2001 census. The number of the disabled is increasing every year due to factors such as armed conflicts and violence, unhealthy living conditions, or ignorance about disability, its causes, prevention and treatment.
It is also significant that 55% persons with disabilities are illiterate (National Sample Survey Organisation Report, 2002).
Constitution of India vide its articles 14 and 16 present non-discriminatory provisions that guarantee equality and equal opportunity for all citizens.
Supreme Court had held in Indian Bank's Association v. Devika Consultancy Service, MANU/SC/0355/2004 : (2004) 11 SCC 1 that despite the progressive stance of the Supreme Court and initiatives taken by the Government, the implementation of the Disabilities Act, is far from satisfactory. The disabled are victims of discrimination in spite of the beneficial provisions of the Act.
There exists a clear relationship between poverty and disability. The risk for impairment is greater for a poor family, while at the same time, a disabled family member places higher demands on the family's resources.
International efforts have laid emphasis by their declaration on the rights of the mentally retarded persons. The instrument was adopted by the UN General Assembly in 1971
The Declaration on the Rights of the Disabled Persons was adopted by the UN General Assembly on 9 December, 1975
Disabled persons are entitled to the same political and civil rights as others, including measures necessary to enable them to become self-sufficient.
1. Education, medical and placement services.
2. Economic and Social Security.
3. Employment.
4. Live with their families
5. Participate in social and creative events.
6. Protection against all exploitation, abuse or degrading behaviour.
7. Avail themselves of legal aid.
The United Nations Convention on the Rights of Persons With Disabilities (UNCRPD) 2008 was a milestone development.
It adopted a human rights approach instead of earlier medical approach to disability. Rather than viewing people with disabilities as objects warranting social protection and medical care, they were dealt with as subjects having human rights and fundamental freedoms. It defines disability as an evolving concept.
Disability is the result of interaction between societal barriers and the impairment rather than a product of the limitation imposed by physical or mental impairments. The notion of "equalization of opportunities" means that society must employ its resources in such a way that every individual including persons with disabilities, has an equal opportunity to participate in society.
Persons with disabilities are entitled to exercise their civil, political, social and cultural rights on equal basis with others. There are two legislative efforts in this area.
The above Act was enacted to consolidate and amend the law relating to the treatment and care of mentally ill persons. Further, to make better provisions with respect to their property and affairs and for connected matters. The major deficiency of the Act is its failure to address the removal of social stigma attached to mental illness and educating the society. It has failed to mandate medical opinion to licensing authorities of services.
It is meant to provide minimum standards in training and qualification for rehabilitation professionals.
1. Treats disability as a civil right rather than a health and welfare issue.
2. Recognises the need to integrate persons with disabilities with the mainstream of society by some normative action.
1. Panel of experts for law making does not have disabled persons on it. Therefore, those concerned with law making have no actual sensitivity towards it.
2. Process for getting a disability certificate is cumbersome.
3. Private sector has been unwilling to give employment to the disabled.
1. Those with mental illnesses cannot enter into contracts and have no property rights.
2. Visually impaired are not able to access banks through ATMs.
3. Disabled cannot access public transportation system, pedestrian signs, sports auditorium etc.
1. Javed Abidi v. Union of India, MANU/SC/0794/1998 : (1999) 1 SCC 467.
2. Chandan Kumar Banik v. State of West Bengal, 1995 Supp (4) SCC 505.
3. In re: Union of India, MANU/SC/0081/2002 : (2002) 3 SCC 31.
4. Unnikrishnan JP v. Union of India, MANU/SC/0333/1993 : (1993) 1 SCC 645.
5. TMA Pai Foundation v. State of Karnataka, MANU/SC/0905/2002 : (2002) 8 SCC 481.
6. Kunal Singh v. Union of India, MANU/SC/0106/2003 : (2003) 4 SCC 524.
7. M.C. Mehta v. Union of India, MANU/SC/1018/1999 : (1999) 6 SCC 9.
Dignity of the individual is an underlying notion behind all the fundamental rights guaranteed under Part III of the Constitution. Right to dignified life is not only a fundamental right but also a human right.
1. Stigma
2. Residual disability and its intolerance
3. The inability to protest against exploitation.
Mental illness means any mental disorder other than mental retardation.
Mental retardation means a conduction of arrested or incomplete development of mind of a person which is specially characterized by sub-normality of intelligence.
1. Better and more accessible care
2. Good recovery
3. Increased hopes of re-integration into society.
1971 Declaration on the Rights of the Mentally Retarded Persons (adopted by the General Assembly on 20 December, 1971).
Declaration of the Rights of the disabled persons (adopted by the UN in 1975) includes persons with mental illness. It proclaimed equal civil and political rights of the disabled people to an inherent right to respect their human dignity.
Mental Health Act, 1987 is a Civil Rights legislation with focus on regulating standards in mental health institutions.
An Act to consolidate and amend the law relating to the treatment and care of mentally ill persons, to make better provisions with respect to their property and affairs and for matters connected therewith or incidental thereto.
1. Admission of non-criminal mentally ill persons to jails was held to be illegal and unconstitutional by the Supreme Court in Sheela Barse v. Union of India, MANU/SC/0562/1993 : (1993) 4 SCC 204.
2. The practice of tying up the patients who were unruly or not physically controllable with iron chains. Was ordered to be discontinued by the Supreme Court in Chandan Kumar Banik v. State of West Bengal, 1995 Supp (4) SCC 505. The court ordered medical treatment of these patients.
3. All mental asylums located in the State of Tamil Nadu which were housed in thatched shed were ordered to be closed immediately. Whenever mentally ill patients were to be found in chains, they were to be unchained immediately. Those with violent tendencies would be admitted in government mental institutions for further care. In re: Union of India, MANU/SC/0081/2002 : (2002) 3 SCC 31.
A binding piece of international legislation presents an instrument having global reach.
Article 24 of the Constitution of India is the relevant policy in this regard. It enforces prohibition of employment of children in factories etc. No child below the age of fourteen years shall be employed in work in any factory or mine or engaged in any other hazardous employment.
In India, by even modest estimates, there are a few million children who not only stand deprived of a right to childhood but also have been saddled with responsibility of heading their households. Across the country militancy, insurgency, floods, famine, malnutrition and road accidents render several lakh children orphans.
Children are the future of a nation. Child labour means any kind of work for children that harms them or exploits them in some way, may it be physically, mentally, morally, or by depriving a child of education. Child labour is essentially a socio-economic problem. Child labour invariably runs counter to the minimum age laid down for employment. It is detrimental to children's physical, mental and emotional development. It exposes them to different forms of abuse such as child trafficking, debt bondage, forced labour or illicit exploitation. It keeps them away from basic education. Further, it involves use of children to lower labour standards.
It is felt that as long as poverty continues, it would be difficult to totally eliminate child labour. Hence, any attempt to abolish it through a legal regime would not be a practical proposition. Hence, a viable option is to ban child labour in hazardous areas. Further, to regulate and ameliorate their conditions of work in other areas.
1. Children are employed as labour to work in unsafe environment.
2. Their childhood is a life of poverty, illiteracy and prolonged misery.
3. Child labourers usually receive only meager wages.
Following industries employ children in jobs which are often hazardous in nature.
1. Beedi manufacture
2. Diamond industry
3. Domestic labour
4. Fireworks making
5. Silk manufacture
6. Construction
7. Brick kiln.
The estimate of number of child labour in India varies from 20 to 50 million. A child labour is usually overworked, underfed and underpaid.
1. Prohibits engagement of children in certain employments.
2. Regulates the conditions of work.
The Act prohibits employment of children in 13 occupations and 57 processes contained in Part A & B of the Schedule of the Act.
The Central and State Governments enforce the provisions of the Act in their respective spheres.
1. Transport of passengers
2. Fire works
3. Abattoirs
4. Carpet weaving
5. Beedi, cement, soap
6. Building
7. Hazardous process
8. Brick kilns etc.
The list of hazardous occupations and processes is progressively being expanded on the recommendations of Child Labour Technical Advisory Committee to address health and safety concerns.
The violation of the Act carries punishment ranging from one month to two years imprisonment.
1. There is no law to regulate the working conditions of children in most of the employment where they are not prohibited to work. The Act does not protect children who perform domestic or unreported labour.
2. Girls are unrecognised labourers because they are seen as helpers and not workers.
Since poverty is the root cause of child labour, general development programmes are being directed to cover child labour and their families. They are to be given benefit of poverty alleviation schemes and opportunities of employment generation. The other efforts involve setting up of special schools for the education of child labour withdrawn from work.
Education is the most effective mechanism for development of human beings. It has the potential to emancipate them and lead to their liberation from ignorance and poverty. Education is the minimum essential for all round development of an individual personality.
As pointed out by the Supreme Court in Unni Krishnan J.P. v. State of Andhra Pradesh, MANU/SC/0333/1993 : (1993) 1 SCC 645, "That is education which leads to liberation - liberation from ignorance, which shrouds the mind; liberation from superstition which paralyses effort, liberation from prejudices which blind the vision of the Truth". Education alone is the key for emancipation from poverty and would lead to development. The access to education is to be ensured through law.
The right to education emanates from the Preamble, articles 14, 15(4), 16, 21, 29(2) and 30 of the Constitution.
The State shall provide free and compulsory education to all children between the age of 6 to 14 years, as the State may, by law determine.
According to one estimate, 22 crore children fall in above age group, out of which nearly 1.1 crore are out of school. In the case of Unnikrishnan v. State of Andhra Pradesh, the Supreme Court held that the right to education is implicit in the right to life and personal liberty guaranteed by article 21 and must be interpreted in light of the Directive Principles of State Policy contained in articles 41, 45 and 46. However, the Court limited the State obligation to provide the educational facilities as follows:-
1. Every citizen of India has a right to free education until he completes the age of 14 years.
2. Beyond that stage his right to education is subject to the limits of the economic capacity of the State.
The Right of Children to Free and Compulsory Education Act, 2009 provides for free and compulsory education to all children of the age of six to fourteen years.
1. No donation or capitation fee.
2. No interview of the child or parent for admission.
All private schools to reserve 25% of seats for children from poor families (to be reimbursed by the State as part of public private-partnership plan).
(a) Child belonging to disadvantaged group.
(b) Child belonging to weaker section.
No child shall be held back, expelled or required to pass a board examination until the completion of elementary education.
Special training of school drop outs to bring them at par with students of the same age.
Surveys will monitor all neighbourhoods, identify children requiring education and set up facilities for providing it.
The Right to Education of persons with disabilities until 18 years of age has also been made a fundamental right.
State Commission for Protection of Child Rights.
1. Quality of education questionable. According to Dr. Karan Singh, "our system of education should be designed to inculcate in the young an awareness of the primacy of the spirit without in any way belittling the importance of the material foundations upon which any dynamic civilization must rest."
(a) Shortage of teachers
(b) Infrastructural gaps.
2. A discriminatory step because those studying in private schools are at an advantage.
3. No provision for children in age group of 0-5 years.
The Act provides for education till the age of 14 years. But education upto class VIII is inadequate to equip a child with the basic skills needed either for gainful employment or to equip him to function with a basic level of self reliance and empowerment.
Keeping the private, unaided institutions and Central Government Schools outside the purview of the Act not only makes them immune from fulfilling the Constitutional mandate but also allows them to function as institutions catering to a few elite in the society and thereby perpetuating inequality which is impermissible under article 14 of the Constitution.
The word 'neighbourhood' has not been defined in the Act. The States may thereby interpret in the manner convenient to hide their inefficiencies.
As of now, the teachers are not able to identify students with special needs. Students who suffer from mild to moderate form of disability like autism or dyslexia have no special educators, in majority of the schools, to teach them.
According to a study conducted in all nine districts of Delhi State in July-August 2010, nearly 70 per cent. of street children have to find for themselves though their parents, siblings or other relatives also live in the city. Most of the children are engaged in rag picking, vending, begging, working in road side stalls, repair shops and manufacturing units. More than half of them spoke of some kind of abuse - verbal, physical and even sexual, sometimes at the hands of policemen.
Street children suffer from many denials and vulnerabilities. These include, deprivation of responsible adult protection, coercion to work to eat each day, work on unhealthy occupations on streets like rag picking and begging etc. While dealing with the plights of shelterless persons in Delhi, in the matter of People's Union for Civil Liberties v. Union of India, (2010) 5 SCC 318, the Supreme Court rules that street children also need shelter and rehabilitation.
Sons and daughters who ill treat their old parents or fail to provide for their needs are liable to be proceeded against under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. This Act seeks to have provisions for the maintenance and welfare of parents and senior citizens, guaranteed and recognized under the Constitution. The object is to ensure the maintenance of parents and senior citizens by their children. The Act grants them right to get maintenance by moving the Tribunal constituted under the Act. A refusal or neglect to take care of old people may result in a direction to pay maintenance upto Rs. 10,000 per month in addition to a fine of Rs. 5,000 and also a prison term of three months.
National Old Age Pension Scheme (NOAPS) is one of the components of National Social Assistance Programme (NSAP). The NOAPS provides a monthly pension of Rs. 200 to destitute BPL persons above the age of 65. This scheme is implemented in the State and Union Territories through Panchayats and Municipalities. The State's contribution varies from State to State. The scheme is expected to cover 1.57 crore people and cost Rs. 3772 crore. Every eligible person may apply for the pension in the prescribed Form OAP-1 and submit the same through Gram Panchayat or Municipality as the case may be and obtain acknowledgement. Application forms can be obtained from local Mandal Parishad office or Municipality at free of cost.
As an interim measure, Supreme Court directed in People's Union for Civil Liberties v. Union of India, (2009) 16 SCC 598, that no scheme covered by the Supreme Court's orders and including the NOAPS, National Family Benefit Scheme, in particular Annapurna and National Maternity Benefit Scheme shall be discontinued or restricted in any way without prior approval of the Supreme Court. Further, a hope was expressed that Government of India and State Governments would simplify the procedure so that high proportion of eligible persons remain covered by the schemes.
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