Law Relating to Women and Children Questions 81 to 90

Q81. Discuss in detail the provisions of Maintenance of wife and children under the Adoption and Maintenance Act, 1956.

Maintenance of wife (Section 18):

1. Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.
2. A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance:-

1. if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her;
2. if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;
3. if he is suffering from a virulent form of leprosy;
4. if he has any other wife living;
5. if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;
6. if he has ceased to be a Hindu by conversion to another religion;
7. if there is any other cause justifying her living separately.
8. A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

Maintenance of children and aged parents (Section 20):

1. Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.
2. A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.
3. The obligation of a person to maintain his or her aged or infirm parent or daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property Explanation- In this section “parent” includes a childless stepmother.

Q82. Discuss in detail about Guardianship under the Muslim Personal Law.

A person who is authorized underneath the law to guard the person or property of a minor is called a guardian. Under Muslim law, guardians are needed for the aim of a wedding, for protecting the minor’s person and for protecting the minor’s property.

The guardianship of a child means that overall oversight of the kid throughout its minority. Father or his executor or in his absence, the paternal grandfather, being the natural guardian, is in charge of the minor’s person. On the opposite hand, ‘custody of the child’ simply means a physical possession (custody) of the child upon a certain age.

Although the mother is not the natural guardian of the child under Muslim law, she has a right to the custody of the child, until the child attains a specific age. But the father or the paternal grandfather encompasses control over the minor throughout the complete interval of the minority.

Muslim law recognizes the following kind of guardianship:

1. A natural or legal guardian
2. Testamentary guardian
3. Guardian appointed by courts or statutory guardian
4. De-facto guardian

Q83. Discuss fully the provisions of the Maternity Benefits Act, 1961

Maternity Benefit is a payment made to women who are on maternity leave from work. Every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit, which is the amount payable to her at the rate of the average daily wage for the period of her actual absence. Every woman employee who may be employed directly or through any contractor and who has worked in an establishment for a period of at least 80 days during the 12 months immediately preceding the date of her expected delivery shall be entitled to for the benefits. 

Cash Benefits

• Leave with average pay for six weeks before the delivery.
• Leave with average pay for six weeks after the delivery.
• A medical bonus if the employer does not provide free medical care to the woman.
• An additional leave with pay up to one month if the woman shows proof of illness due to the pregnancy, delivery, miscarriage or premature birth.
• In case of miscarriage, six weeks leave with average pay from the date of miscarriage.

Non Cash Benefits/Privilege:

• Light work for ten weeks (six weeks plus one month) before the date of her expected delivery, if she asks for it.
• Two nursing breaks in the course of her daily work until the child is 15 months old.
• No discharge or dismissal while she is on maternity leave.
• No change to her disadvantage in any of the conditions of her employment while on maternity leave.
• Pregnant women discharged or dismissed may still claim maternity benefit from the employer.

In addition to the above the Act also makes provisions to undertake light work activities for pregnant women 10 weeks prior to her delivery also nursing breaks during daily work till the child attends age of 15 months

Q84. Explain with case laws- Sexual Harassment of the women at workplace.

Atrocities against women are common everywhere. Nowadays many women are working in different places of work. There are chances of sexual harassment at the workplace. Sexual harassment of women at a workplace is considered a violation of women’s right to equality, life, and liberty. It creates an insecure and hostile work environment, which discourages women’s participation in work, thereby adversely affecting their social and economic empowerment and the goal of inclusive growth.

In the Vishaka v. State of Rajasthan, (1997) 6 SCC 241 case, the guidelines issued by a three-judge bench comprising of Chief Justice Verma, Justice Sujata V. Manohar and Justice B.N. Kripal widened the meaning and scope of sexual harassment. It defined sexual harassment as an unwanted sexual determination which is directly or impliedly intended to cause the following: 

1. Physical contact or advances.
2. A demand or request for sexual favours.
3. Sexually coloured remarks.
4. Showing pornography.
5. Any other unwelcome conduct whether it is physical, verbal or non-verbal. 

After 16 years of Vishakha case, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 was enacted with the objective to provide protection against sexual harassment of women at the workplace and for the prevention and redressal of complaints of sexual harassment and for matter connected therewith or incidental thereto.

Q85. Discuss in detail about Adultery and Rape.

Adultery:

According to Section 497 of Indian Penal code (IPC) 1860, “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine or with both. In such a case, the wife shall not be punishable as an abettor”.

In 2018 section 497 was struck down by Supreme Court in the case Joseph Shine v. Union of India unanimously by the constitutional bench

Rape:

Section 375 of IPC defines the term “Rape” as follows:

A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:—

(First) — Against her will.

(Secondly) —Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

(Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.

(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is under sixteen years of age.

Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rap

Section 376 of IPC deals with punishment for the offence of rape.

Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

Whoever commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine

Q86. Discuss in detail with the help of case law about the Minor’s agreement.

According to Section 11 of the Indian Contract Act, Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject. According to the recent amendment in the Indian Majority Act, a minor is one who has not completed 18 (eighteen) years of age irrespective of whether or not a guardian has been appointed for the minor.

• According to the Indian Contract Act 1872, section 11, a minor cannot be party to the contract, in other words, the agreement with a minor is void ab initio (from the start).
• Minor’s agreement being absolutely void, neither party acquire any right, or incurs any liability, under the agreement.

In Mohiri Bibi v Dharmodas Ghose (1903) 30 Cal. 539 (P.C.), the court (privy council) held that the agreement is void ab initio because of the fact that it is made with a minor. Hence the property was conveyed to the defendant and the money advanced to the defendant was allowed to keep with him.

Q87. Discuss the main objective of “Juvenile Justice (Care and Protection) Act, 2000

The following are the objectives of the Juvenile Justice (Care and Protection of Children) Act, 2015.

• To lay down the basic principles for administering justice to a juvenile or the child in the Act;
• To make the juvenile justice system meant for a juvenile or the child more appreciative of the developmental needs in comparison to the criminal justice system as applicable to adults;
• To bring the juvenile law in conformity with the United Convention on the Rights of the Child;
• To prescribe a uniform age of eighteen years for both boys and girls;
• To ensure speedy disposal of cases as enshrined under Article 21 of the Constitution of India by the authorities envisaged under this Act regarding juvenile or the child within a time limit of four months;
• To spell out the role of the State as a facilitator rather than doer by involving voluntary organizations and local bodies in the implementation of the proposed legislation;
• To create special juvenile police units with a humane approach through sensitization and training of police personnel;
• To enable increased accessibility to juvenile or the child by establishing Juvenile Justice Boards and Child Welfare Committees and Homes in each district or group of districts;
• To minimize the stigma and in keeping with the developmental needs of the juvenile or the child, to separate the Act into two parts—one for juveniles in conflict with the law and the other for the juvenile or the child in need of care and protection;
• To provide for effective provisions and various alternatives for rehabilitation and social reintegration such as adoption, foster care, sponsorship, and aftercare of abandoned, destitute, neglected, and delinquent juvenile and child.
• To allow juveniles between the age group of 16-18 years to be tried as adults for heinous offenses.

Q88. Write in detail about the status of the women in pre-independence India and trace some of the historical events which led to the improvement of their status.

The British came to India in 1600 A. D. For nearly 200 years in their East India company incarnation there were no real efforts made to address questions of social inequality or social oppression.  The need for cheap labour and exploitation of natural resources were at the core of the imperial economy and it did not initially touch upon the social scene. Hence social evils such as sati, suppression of widow, denial of the right to education for women, and child marriage flourished unchecked. At the advent of the British rule, the position of women in India was at its lowest ebb.

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. These reformers attacked only those practices that were extremely cruel or visibly violent (affecting only high caste Indian women). They rarely challenged the kinship structures of women’s subordination, sanctity of marriage and family, the sexual division of labour, and caste hierarchies which perpetuated inequalities. Women reformers like Pandita Ramabai, Rukhmabai, and Tarabai Shinde pointed out the biases of their contemporary male reformers. PanditaRamabai began the movement that put emphasis upon the freedom of women within the Indian society. During this period, there were many ladies, who mastered the art of martial arts.

The Sati (Abolition) Act, of 1829 is considered a great achievement of the reformist movement. There is an economic reason for the prevalence of widow immolation. Sati effectively prevents the inheritance by widows. The Widow Remarriage Act, 1856 was recognized by law in 1856. The Child Restriction Act, 1929, and The Woman Property Right Act, 1937 were some Acts passed during this period which helped in the social reformation in India. The Dissolution of Muslim Marriage Act 1939 gave to a Muslim wife the right of judicial separation from her husband that was denied to her earlier.

In spite of some reforms, the status of women within the society was in an underprivileged state. They were not having any right to claim success in the property of their own family members. Therefore, as far as property matters are concerned, the position of women was not given recognition, as they were not given any inheritance rights. They were dependent upon the male members of the family for fulfilling all their needs and requirements.

Woman’s participation in India’s freedom struggle began as early as in 1817. Bhima Bai Holkar fought bravely against the British colonel Malcolm and defeated him in guerilla warfare. Many women including Rani Channama of Kittur, Rani Begam Hazrat Mahal of Avadh fought against the British East India company in the 19th century. Rani Lakshmibai was the great warrior of the First War of Indian Freedom. She showed the embodiment of patriotism, self-respect, and heroism. Sarla Devi, Muthulaxmi Reddy, Susheela Nair, Rajkumari Amrit Kaur, Sucheta Kripalani, and Aruna Asaf Ali were some of the women who participated in the non-violent movement. Samiti, Suniti, Bina Das, Kalpana Dutta, and Preetilata Waddedar are well-known women revolutionaries.

Q89. Discuss in detail with the help of case laws about the Restitution of the Conjugal Rights under the Hindu Marriage Act, 1955.

Section 9 of the Hindu Marriage Act (HMA), 1955 and Section 22 of the Special Marriage Act (SMA), 1954 provides for restitution of conjugal rights which states that if a husband or a wife has withdrawn from the society of the other without any reasonable excuse, then, the aggrieved party can file a petition before the District Court for restitution of conjugal rights i.e. to bring the spouse back to live with the other spouse. The court may grant a decree of conjugal rights if it is satisfied that the petition is based on truth and there is no legal ground for dismissing the petition. 

Conditions for acquiring Decree of Restitution of Conjugal right:

1. The other spouse has withdrawn from the society of the petitioner.
2. There is no reasonable excuse for such withdrawal. Should the respondent allege reasonable excuse, the burden of proof lies on him/her.
3. The court satisfied as to the truth of the statements made in the petition.
4. No legal grounds exist for refusing the decree.

Section 9 has always been in controversy regarding its constitutional validity. In the case of T. Sareetha v. T. Venkata Subbaiah, the High Court declared Section 9 of the HMA, 1955 as unconstitutional for being violative of the right to privacy and human dignity guaranteed under Article 21 of the Constitution of India. Justice P.A. Choudhary observed that Section 9 is the grossest form of violation of the right to privacy. Forcing a spouse to have sexual relations with her spouse deprives her of the right to control her own body. The state cannot coerce a spouse to prolong the voluntary union of her with her spouse in their relationship. The state by coercion can neither soften the ruffled feelings between a couple nor can it clear the misunderstanding between them. The judge even observed that Section 9 is not promoting any public purpose, rather it is violative of right to equality under Article 14 of the Indian Constitution as well. 

Q90. Discuss in detail about the establishment, jurisdiction, powers and functions of the family court.

Family courts are specialized courts that were established with the goal of preserving the welfare of the family through the use of a multi-disciplinary approach to resolving family problems within the framework of the law.

Establishment of Family Court:

Section 3 of the Family Courts Act, 1984, lays provision for the establishment of one Family Court. The State must establish a Family Court for every area in the State comprising a city or town whose population exceeds one million in consultation with the High Court by giving notification in Official Gazette. Similarly, the State Government, after consultation with the High Court, must specify, by notification, the local limits of the area to which the jurisdiction of such Court shall extend and may, at any time, increase, reduce or alter such limits. State Government can establish Family Court for other areas in the State as the State Government may deem necessary.

Jurisdiction of Family Court:

Section 7 of the Family Courts Act, 1984 deals with the Jurisdiction of Family Courts in India. It was decided that all matters related to the family, such as separation, divorce, alimony and maintenance, custody, guardianship, education and financial support to children, etc. should fall under the jurisdiction of the family court.

Powers of Family Court:

1. Family Court shall be deemed to be a civil Court (except for proceedings relating to Maintenance of wives, children and parents relating to the Code of Criminal Procedure)
2. Family Court is allowed to consider any evidence if it aids effectively in dealing with a dispute despite its admissibility under the Indian Evidence Act of 1872.
3. Judge of a Family Court has the power to order for recording the oral evidence given by a witness.
4. Family Court judge may summon and examine any person who is part of an affidavit submitted in the court as any form of evidence.

Functions of Family Court:

1. The family Court shall make an endeavor to assist and persuade the parties in arriving at a settlement. If the Court feels that there is a reasonable possibility of a settlement the Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to arrive at a settlement.
2. The Court shall record what the witness deposes and the memorandum shall be signed and form a part of a record.