Law Relating to Women and Children Questions 01 to 10

Q1. Write a short note on Medical Termination of Pregnancy Act

On the basis of the Shantilal Committee report submitted in December 1966, a medical termination bill was introduced in both the Lok Sabha and Rajya Sabha and was passed by the parliament in 1971.  This Act is applicable to the whole of India. This Act has been in force with effect from 1^st April 1972. The act was further revised in the year 1975 to make it less complicated and more effective.

Objects of Medical Termination of Pregnancy Act, 1971:

There are situations in pregnancy, such that the life of the mother or the life of the child in the womb, is in danger. This Act has been enacted mainly with a view to save the life of the mother. Under this Act, the pregnancy of the mother can be terminated

• On medical grounds, like when the physical or mental health of the mother is at risk;
• On humanitarian grounds, like when there is a forced pregnancy because of rape;
• There is a possibility of the birth of a deformed child.

Features of Medical Termination of Pregnancy Act, 1971:

• Under this Act, the pregnancy of the mother can be terminated

1. On medical grounds, like when the physical or mental health of the mother is at risk;
2. On humanitarian grounds, like when there is a forced pregnancy because of rape;
3. There is a possibility of the birth of a deformed child.

• Only Registered Medical Practitioner can perform treatment of termination of pregnancy in good faith at hospitals maintained by the Government or approved by the Government in accordance with the provisions of the Medical Termination of Pregnancy Act, 1971.
• Any illegal termination of pregnancy is punishable under this Act and under the Indian Penal Code, 1872.
• The Act does not permit termination of pregnancy after 20 weeks. The medical opinion must off course be given in “good faith”. The term good faith has not been defined in the Act but sec. 52 if the IPC defines good faith to mean as an act done with ‘due care and caution’.

Q2. Write a short note about Immoral Traffic (Prevention) Ac, 1956

Objects of the Act:

• In 1950, the Government of India ratified the International Convention for the Suppression of Immoral Traffic in Persons and the Exploitation of the Prostitution of Others. Under Article 23 of the Convention, traffic in human beings is prohibited and any contravention of the prohibition is an offence punishable by Law. Under Article 35 such a Law has to be passed by Parliament as soon as may be after the commencement of the Constitution.
• Legislation on the subject of suppression of immoral traffic does exist in a few States but the Laws are neither uniform nor do they go far enough. In the remaining States there is no bar on the subject at all.
• In the circumstances it is necessary and desirable that a Central Law should be passed which will not only secure uniformity but also would be sufficiently deterrent for the purpose. But a special feature of the Bill as that it provides that no person or authority other than the State Government shall establish or maintain any protective home except under a licence issued by the State Government. This will check the establishment of homes which are really dens for prostitution.

Features of the Act:

• In 1950 the Government of India ratified the International Convention for the Suppression of Immoral Traffic in Persons and the Exploitation of the Prostitution of others. In 1956 India passed the Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA).
• By section 3 of the Suppression of Immoral Traffic in Women and Girls (Amendment) Act, 1986 (44 of 1986) the nomenclature of the Act has been changed with effect from 20th January, 1987. Now it stands as The Immoral Traffic (Prevention) Act, 1956 (104 of 1956).
• The act states the illegality of prostitution and the punishment for owning any such related establishment
• Any person involved in any phase of the chain activities like recruiting, transporting, transferring, harbouring, or receiving of people for the purpose of prostitution is also liable to be punished
• If a person is found guilty of involving a child in any such activity, he/she is punishable by law and may be imprisoned for seven or more years

The Act is amended by the Immoral Traffic Prevention Amendment Bill, 2006. Given below are the important points of the Amendment bill:

• The Bill deletes provisions that penalised prostitutes for soliciting clients. It penalises any person visiting a brothel for the purpose of sexual exploitation of trafficked victims
• All offences listed in the Bill would be tried in camera, i.e., the public would be excluded from attending the trial
• This Bill punishes trafficking for the purpose of prostitution. Trafficking for other purposes (such as bonded labour and domestic work) are not covered by the Bill

The Bill constitutes authorities at the centre and state level to combat trafficking. However, it does not elaborate on the role, function and composition of these authorities.

Q3. Explain the International views about protection of women’s and children’s right.

• The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), a key international agreement on women’s human rights, was adopted by the United Nations General Assembly in 1979. CEDAW is often described as an international bill of rights for women. Its preamble and 30 articles aim to eliminate gender discrimination and promote gender equality. The convention defines discrimination against women as “any distinction, exclusion or restriction made on the basis of sex” that impedes women’s “human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” It sets an agenda for national action to end such discrimination, requiring all parties to the convention to take “all appropriate measures, including legislation, to ensure the full development and advancement of women” and guarantee their fundamental freedoms “on a basis of equality with men.”
• An important outcome of the 1995 Beijing Fourth World Conference on Women was the Beijing Declaration and Platform for Action. These documents embody the international community’s commitment to advance and empower women and remove obstacles in the public and private spheres that have historically limited women’s full participation. The Platform for Action sets forth three strategic objectives related to the human rights of women: to promote and protect women’s human rights through the full implementation of all human rights instruments (especially CEDAW), to ensure equality and non-discrimination under the law and in practice, and to achieve legal literacy. 
• the Universal Declaration of Human Rights of 1948 proclaimed a basic catalog of internationally recognized human rights, most of which were equally applicable to children and adults. But only two of its provisions are specifically concerned with children – article 25 (2), which recognizes that “motherhood and childhood are entitled to special care and assistance,” and article 26, dealing with the right to education.”
• the most important policy statement in this field adopted by the General Assembly is the 1959 Declaration of the Rights of the Child. Stressing that “mankind owes to the child the best it has to give,” the Declaration’s 10 principles affirm the right of the child to receive special protection, to be given opportunities and facilities to enable him to develop in a healthy and normal manner, to enjoy the benefits of social security, including adequate nutrition, housing, recreation and medical services, to receive education and to be protected against all forms of neglect, cruelty and exploitation. Most of these rights were subsequently reaffirmed in treaty form in the International Covenant on Economic, Social and Cultural Rights adopted in 1966.

Q4. Write a significance of convention on the elimination of all forms of discrimination against women.

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is an international legal instrument that requires countries to eliminate discrimination against women and girls in all areas and promotes women’s and girls’ equal rights. CEDAW is often described as the international bill of rights for women, and is one of the key international agreements that guides the work of UN Women in achieving gender equality and empowering all women and girls. 

• CEDAW provides a complete definition of sex-based discrimination – described as any distinction, exclusion, or restriction on the basis of sex, which intentionally or unintentionally nullifies or impairs the recognition, enjoyment and exercise of women’s social, cultural, political and economic rights.
• CEDAW takes a concrete and three-dimensional view of equality – it is based on the principle of “substantive equality”, or “equality of results” between men and women. This goes beyond equality of opportunity, and the wording used in laws, to looking at the actual condition of women’s lives as the true measure of whether equality has been achieved.
• CEDAW legally binds all States Parties to fulfill, protect and respect women’s human rights – this means that States are responsible not just for their own actions, but also for eliminating discrimination that is being perpetrated by private individuals and organizations. Gender inequalities must be addressed at all levels and in all spheres, including the family, community, market and state.
• CEDAW recognizes that discrimination is often most deeply rooted in spheres of life such as culture, family and interpersonal relations – it addresses the negative impact of gender stereotyping, working on the fundamental premise that unless change takes place at those levels efforts to achieve gender equality will be frustrated.

Q5. Write a women’s status on ancient era as well as modern era.

Status of Women in Ancient India:

In the ancient Indus valley civilization of India, evidence shows the worship of the mother goddess. Thus the importance of a woman as a mother can be traced. During the Rig Vedic period, it is believed that the position of wife was honoured and women’s position was acknowledged, especially in the performance of religious ceremonies. The education of young girls was considered an important qualification for marriage.  Ghosha (she wrote hymns in the praise of Ashwini Kumars, physicians of gods), Lopamudra (wife of rishi Agasthya), Maitreyi (the woman seer, and philosopher), Gargi (the Vedic prophetess and philosopher) were known for their intelligence and were respected in their society. We can see some references in Vedic literature that in the Kshatriya society, brides had the exclusive right of selecting their life partners, through ‘Swayamvara’. In the Rig Vedic society, the dowry system was unknown. However, the concept of marriage was as a dan (gift) and known as “kanyadan”.  Monogamy was the general practice though Bigamy was also in practice, it was limited to the aristocratic classes. Thus we can conclude that the status of women in this period was primarily dependent upon their upbringing and the society in which they lived. Medieval Indian history spreads over 500 years. It is predominantly the history of Muslim rulers. With the advent of Muslims in India, the social movement of Indian women was restricted.

Status of Women in Modern Era:

During the colonial era, many Indians acquired western education and were introduced to the concepts of freedom, equality, and fraternity proclaimed during the French revolution. These educated people emphasized the equality of women with men. They challenged the caste system. The British government took bold steps to reform the caste-ridden Indian social order. Most of the reform movements Brahma Samaj of 1825 (Founded by Raja Ram Mohan Roy), Prarthana Samaj of 1897 (Founded by Dadoba Pandurang and Atmaram Pandurang) and Arya Samaj of 1875 (Founded by Swami Dayanand Saraswati), Satyashodhak Samaj (Founded by Mahatma Jyotiba Phule), and Widdow Remarriage Movement (By Ishwar Chandra Vidyasagar) were led by male reformers who set the limit of the freedom and development of women.

Our revered Constitution framers were well aware of the subordinate and backward position of women in India. They, therefore, made sincere efforts to improve the entire situation in favour of women. The introduction of the concept of equality through various provisions in the Indian Constitution, followed by laws concerning marriage, divorce, inheritance, maintenance, widow remarriage, prohibition of sati, dowry, child marriage, etc., laid the foundation of their present status. Realizing the need of setting up an agency to protect women against violence the government decided to set-up a Commission for Women and enacted the National Commission for Women Act, 1990 and the Protection of Human Rights Act, 1993.

Q6. Rights and duties of National Commission for women

Section 10 of the National Commission for Women Act, 1990 deals with the functions of the Commission. The National Commission of Women enjoys the powers of a civil court. It investigates and examines the matters related to safeguards provided for women under the Constitution and other law. The Parivarik Mahila Lok Adalat, (PMLA) is an innovative component with its roots in the traditional Nyaya Panchayats. It is created by NCW for the redressal and speedy disposal of cases.

The Commission shall perform all or any of the following functions:

• Investigation and Examination: Investigate and examine all the matters relating to the safeguards provided for the women under the Constitution and other laws
• Presentation of Reports: Table reports to the Central Government, every year and at such other times as the Commission may deem fit, reports upon the working of those safeguards
• Recommendations: Make in such reports and recommendations for the effective accomplishment of those safeguards for enhancing the conditions of the women by the Union or any State.
• Review, every now and then, the current provisions of the Constitution and other laws distressing the women and prescribe alterations and suggest curative legislative measures meet any break, inadequacies, and incapacity in such legislation.
• Cases of Violation: Take up cases of infringement of the provisions of the Constitution and of other laws relating to the women with the relevant authorities
• Suo Moto Notice: It looks into complaints, and takes Suo Motto notice of matters relating to – deprivation of women’s rights, Non-implementation of the laws, and Non-compliance of policy decisions guaranteeing the welfare for women society.
• Special Studies and Investigation: It conducts special studies or investigation on the concerning issues or circumstances emerging out of segregation and outrages against ladies and recognizes the limitations in order to suggest techniques for their expulsion
• Research: Undertake the promotional and educational research so as to propose ways of ensuring due representation of women in all fields and identifies the factors responsible for impeding the support services and technologies for reducing drudgery and professional health hazards and for escalating their efficiency.
• Participation in all spheres particularly in Planning: take part and advice on the planning process of socio-economic development of women
• Evaluation: assess the progress of the development of women society under the Union and State.
• Inspection: investigate or cause to be inspected a jail, remand home women’s establishment or other places of guardianship where ladies are kept as detainees.
• Funding: fund litigation, relating issues affecting a large body of women.
• Reporting: make periodical reports on any issue pertaining to women and in particular various difficulties under which women toil.

7. Explain the Constitutional provisions to protection of women’s and children in India

Provisions Related with Both Women and Children:

• Right to equality (Article 14)
• Right against discrimination (Article 15)
• Right to personal liberty and due process of law (Article 21)
• Right to being protected from being trafficked and forced into bonded labour (Article 23)
• Right of minorities for protection of their interests (Article 29)
• Right of weaker sections of the people to be protected from social injustice and all forms of exploitation (Article 46)
• Right to nutrition and standard of living and improved public health (Article 47)

Provisions Specially Related with Women:

• Article 42 directs the State to make provision for securing justice and humane conditions of work and for maternity relief.
• Article 51A (e)enjoins upon every citizen to renounce practices derogatory to the dignity of women.
• Article 243 D (3) and Article 243 T(3) provide for reservation of not less than one third of total number of seats in Panchayats and Municipalities for women to be allotted by rotation to different Constituencies.
• Article 243 D(4) T(4) provides that not less than one third of the total number of officers of chairperson in the Panchayat and Municipalities at each level to be reserved for women.

Provisions Specially Related with Children:

• Right to free and compulsory elementary education for all children in the 6-14 year age group (Article 21 A)
• Right to be protected from any hazardous employment till the age of 14 years (Article 24)
• Right to be protected from being abused and forced by economic necessity to enter occupations unsuited to their age or strength (Article 39(e))
• Right to equal opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and guaranteed protection of childhood and youth against exploitation and against moral and material abandonment (Article 39 (f))
• Right to early childhood care and education to all children until they complete the age of six years (Article 45)

Q8. Short note on 498 A of IPC.

Section 498A of the Indian Penal Code, 1860 was passed by the Indian Parliament in 1983. Section 498 A of Indian Penal Code is one of the greatest rescues for Violence against Woman (VAW), which is a reflection of the pathetic reality of the domestic violence occurring within the four walls of a house. According to this Section, if the husband or the relative of the husband of a woman, subjected such woman towards cruelty would be punished with imprisonment for a term which might extend to 3 years and may also be liable for fine. The word ‘cruelty’ has been described in broad terms so as to include causing physical or mental harm to the body or health of the woman and indulging in acts of harassment with a view to coerce her or her relations to meet any unlawful demand for any property or valuable protection.

The incorporation of section 498A was aimed at preventing cruelty committed upon a woman by her husband and her in-laws by facilitating rapid state intervention.  However, cases of false and exaggerated allegations and involvement of several of the husband’s and his family’s relatives have been spreading rampantly, leading to widespread recognition of these beneficiary laws as a means of exacting the wives revenge.

In the case of, Sushil Kumar Sharma v. Union of India and others, the Supreme Court held that the purpose of the provision is to prevent a threat to the dowry. But as the petitioner rightly satisfied that many instances have come to light where the complaints are not bonafide and are filed with oblique motive. In these cases, the acquittal of the accused will not wash out the ignominy incurred during and before the court in any case. Adverse media attention also contributes to the situation.

Q9. Role of personal laws to avoid unequal position of women in India

There are numerous personal laws in India. The applicability of these rules is generally determined by the religion practised by various cultures. The only common feature of all these different personal laws is that, they are prejudiced towards women and shows favouritism to men.

• Marriage: In  Christian, Hindu, and Parsi marriages are considered sacraments, while Muslim marriage is considered as a simple civil transaction rather than a sacrament. Bigamy is illegal under Hindu law. UIn Muslim polygamy is excepted. Mehr is a duty put on the husband as a symbol of respect to the wife under Muslim Law, whereas the Dahej pratha or the dowry system is one of the most important practises in Indian marriages under Hindu Law, despite being illegal.
• Divorce: Polygamy is a sufficient ground for divorce in Hindu law but not in Muslim law, whereby a man can marry any number of wives less than 4 but a woman can only marry one man. Muslim law, the position of women is far worse than what it is under the Hindu law as they face more discrimination and more restrictions in seeking divorce. Christian women could not get a divorce only on their husband’s infidelity; it has to be accompanied with either cruelty, bestiality or sodomy. Christian husbands, on the other hand, might simply declare their wives to be adulteresses and divorce them.
• Maintenance: A Hindu woman has more rights than a Muslim woman, according to the provisions of personal laws. A Hindu wife can divorce or be divorced by her husband and the woman is only entitled to receive maintenance on the ground of her not having married another man. While a divorced woman in Muslim law does not have the ability to seek maintenance after the iddat period and is only entitled to the mehr, the Muslim Women Protection of Rights on Divorce Act of 1986 came into effect, protecting Muslim women’s rights.
• Inheritance: Because India lacks a uniform civil code, the legislation governing inheritance and property distribution varies depending on one’s religious beliefs. The Hindu Succession Act of 2005 and the Indian Succession Act of 1925 are two key statutes that govern property distribution.

Q10.Write a short note on how state responsibility for the protection of child rights in India

Articles 36-51 under Part-IV of Indian Constitution deal with Directive Principles of State Policy (DPSP) They are borrowed from the Constitution of Ireland, which had copied it from the Spanish Constitution. The constitution makers had envisaged that the fundamental rights alone would not help much in alleviating the socio-economic conditions prevailing in India and hence added the DPSP in the Constitution to realize the potential of a welfare State fully. Fundamental Rights and DPSP are meant to supplement each other. The articles related to children of directive principles are as follows:

• Article 39(e) and (f) provides that the State shall, in particular, direct its policy towards securing to “ensure that the health and strength of workers, men and women and the tender age of children are not abused” and “that the citizens are not forced by economic necessity to enter avocations unsuited to their age or strength” and that “the children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity” and that the childhood and youth are protected against exploitation and against moral and material abandonment.
• Article 45- The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.
• Article 47- The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties
• Article 243G read with Schedule 11 – provide for institutionalization of child care by seeking to entrust programmes of Women and Child Development to Panchayat (Item 25 of Schedule 11), apart from education (item 17), family welfare (item 25), health and sanitation (item 23) and other items with a bearing on the welfare of children.