Law Relating to Women and Children Questions 101 to 110

Q101. What does Article 38 of the Indian Constitution provide for?

Article 38 of the Indian Constitution directs the Stateto secure a social order for the promotion of the welfare of the people. In this regard, it provides for two provisions as follows:

1. The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life
2. The State shall, in particular, strive to minimize the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. 

Q102. What is “Polygamy‟?

Many legal systems permit polygamous marriage, under which a man may marry more than one wife. Most ancient cultures and religions in the world have allowed polygamy in one form or the other. Islamic tradition addresses the polygamy directly. The Quran states that a man is allowed up to four wives, but only if he can support them and treat them all equally.

In India, polygamy is illegal under the Hindu Marriage Act, 1955 and the Indian Penal Code.  Before the enactment of the Hindu Marriage Act, 1955, polygamy was mostly practiced by rich merchants and the warrior castes in India. Polygamy and polyandry are illegal under the Hindu Marriage Act, the Christian Marriage Act, the Parsi Marriage Act, and the Special Marriage Act.

Q103. What is “Shelter Home‟?

It is the responsibility of the government to protect the homeless and neglected members of the society.   According to Section 2(u) of the Juvenile Justice (Care and Protection of Children) Act, 2000, “shelter home” means a home or a drop-in-centre set up under section 37.  The Juvenile Justice Act empowers state governments to recognise organisations and provide them assistance, to set up and run shelter homes for children, women and other people, who are in need of care and protection. These shelter homes also function as a drop-in-centres and night shelters for people who are in urgent need of support. A shelter home is a place to take refuge or a temporary arrangement. These shelter homes also serve as government-aided hostels. People who are vulnerable or homeless or are in an emergency situation, they can approach their nearest shelter homes.

The Protection of Women from Domestic Violence Act, 2005, Chapter III lists the duties of shelter home as: “If an aggrieved person or on her behalf a protection officer or a service provider, requests the person in charge of a shelter home to provide shelter to her, such person in charge of the shelter home shall provide shelter to the aggrieved person in the shelter home.”

Role of shelter homes

1. Shelter homes provide protection, services and resources, which enable a person who has experienced abuse to recover from the violence, to rebuild one’s self-esteem and to take steps to regain an independent and self-determined life.
2. Shelter homes increase awareness and understanding related to gender-based violence and violations of human rights.
3. Shelter homes assist women who leave situations of violence, to manoeuvre the police, judicial and social service systems, to access the critical support and protection provided by these institutions.
4. Shelter homes should educate health and judicial providers, as well as social service and security personnel, among other professionals, to recognise violence against women.

Q104. What is the punishment prescribed for Dowry Death?

Section 304B of the Indian Penal Code prescribes punishment for dowry death. Clause 1 of the Section,  defines “Dowry Death” as follows: Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. Explanation attavched to the clause says that for the purposes of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

Clause 2 of the Act prescribes punishment for dowry death. The clause lays down that whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

Q105. The kinds of Muslim Marriages?

• Sahih Nikah (Valid Marriage): When all the essential conditions of a Muslim marriage are duly fulfilled, it is called a sahih nikah or valid marriage.
• Batil Nikah (Void Marriage): If agreement between a prospective bride and a groom which does not meet all the essential conditions of a Muslim marriage is a void agreement and any marriage that takes place in furtherance of a void agreement is called a void marriage or Batil nikah.
• Fasid Nikah (Irregular Marriage): When a marriage is conducted by violating certain or partial conditions of a valid marriage, it is called an irregular marriage. The best instance of an irregular marriage is the marriage between a Muslim and a Christian or a Jew.
• Muta Marriage: The word “muta” literally means “enjoyment, use”. It is a ‘marriage for pleasure’ for a fixed period of time, also known as temporary marriage.

Q106. What is Muta Marriage?

The word “muta” literally means “enjoyment, use”. It is a ‘marriage for pleasure’ for a fixed period of time, also known as temporary marriage. The institution of muta, which was fairly common in Arabia before and at the time of the prophet, is now not recognized by any school of Muslim law in India, except the Ithna Ashari Shiite or Shia school. 

There are four essentials of muta,

1. Form, i.e., proper contract which means declaration and acceptance.
2. Subject, i.e., a man may contract a muta with a woman professing the Mohammedan, Christian or Jewish religion or even with a fire- worship. Relations prohibited by affinity are also unlawful in such marriage;
3. The term, which means that the period of cohabitation should be fixed, which may be a day, a month, a year or a term of years; and
4. Dower.

When the term and the dower are fixed, the contract is valid. If, however, the term is fixed but the dower is not specified, the contract is void. Further, if the dower is specified and the term is not fixed, the contract, though void as muta may operate as a “permanent “marriage.

Q107. Give two grounds for divorce available to Muslim wife under Dissolution of Muslim Marriage Act, 1939?

Divorce petitions for judicial divorce in Islam is governed by the Dissolution of Muslim Marriage Act, 1939. Under the Act, a Muslim woman can file a contested divorce petition on the following grounds:

1. If the whereabouts of the husband are unknown for the past 4 years.
2. If the husband is unable to provide maintenance to the wife for the last 2 years.
3. If the husband has been imprisoned for 7 or more years.
4. If the girl was married before the age of 15 and wishes to annul the marriage before she attains 18 years of age.
5. If the husband subjects the wife to cruelty of any kind.

Q108. Name any two functions for National Commission for Women?

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.

Q109. Define “Child‟ according to The Immoral Traffic Act, 1956?

According to Section 2(aa) of the Immoral Traffic (Prevention) Act, 1956, child means a person who has not completed the age of sixteen years.

Q110. What is “In camera Proceedings”?

In-camera proceeding is an exception to the rule of an open court. An open court or open justice is when a case is heard in the presence of the people and the press, who would report the cases to the public. The usual course of a proceeding is an open court. 

The in-camera proceeding is a private proceeding in the absence of the public and press and it is used in sensitive cases to protect the privacy of the parties. Essentially the proceedings are conducted through video conferencing to safeguard the privacy and protection of the accused. The public and the media are excluded from such proceedings for the purposes of sensitivity.

In cases like divorce, the common grounds found are adultery, cruelty, impotency, desertion etc. Cruelty may include mental shock, physical harassment or excessive or refusal to sexual intercourse. The grounds are linked with the reputation of the parties which is likely to be of a revolting character and may injure the reputation of the party in the eye of the general public. In such cases in camera proceedings can be done.