Indian women and the law
The women's movement has a long tradition of struggle for legal reforms. These legal campaigns often seek to expose the biases in our laws, indifference of the police and the courts in implementing the laws, challenge societal norms and the dominant patriarchal structures and ideologies, and provide some relief to women in distress and crisis.india Updated: Apr 03, 2006 00:55 IST
The women's movement has a long tradition of struggle for legal reforms. These legal campaigns often seek to expose the biases in our laws, indifference of the police and the courts in implementing the laws, challenge societal norms and the dominant patriarchal structures and ideologies, and provide some relief to women in distress and crisis. Dissatisfied with piecemeal legislation, it has always demanded detailed scrutiny of various existing laws and also put some pressure on the State to bring out laws that protect women.
It was during the British rule continuous and prolonged campaign by men and women led to declaration of law banning 'Sati' in 1829.
But the ban was unsuccessful in bringing the number of widow immolation down then, nor did it prevent Roop Kunwar untimely death more than a century later. Since then the legal campaign has existed as a part of the women's movement that is a multi class, issue oriented autonomous and sporadic movement.
Our Constitution grants Fundamental Right to Equality to all before law and further in Article 15 specifically disallows discrimination based on sex religion, race, caste, or place of birth. But unfortunately there is a gap between law and the applications, which remains a large, seemingly insurmountable problem.
As well as there are so many discriminatory laws, which are instrumental in oppressing women within our society. For instance if we take the example of Criminal Justice system it was in the case of Mathura and Rameezabee gross miscarriage of justice led to nation wide campaign for amendment in antiquated rape and dowry laws in the 1980's. The Criminal Law (Amendment Act 1983 ) was brought which was based on the recommendations of Law Commission. These amendments sought to address the issue of rape.
The rape law, which is not a comprehensive law and it exists in pieces within the Indian Penal Code (IPC), The Code Of Criminal Procedure (CrPC) and the Indian Evidence Act (IEA). The change in this segment of law sought to widen the definition of rape and "custodial" rape as serious offence. These amendments proved to be only mechanistic and sometimes even counter productive, as they did not touch the misogyny and suspicion which pervades all the rape laws.
In the majority of cases the police do not bother to lodge the FIR and the medical examination of the victim is also delayed.
Similarly dowry laws were amended in 1984 to make it more effective through redefinition, modification and stringency but due to mindless callousness and lack of political will it has failed to address such a serious problem. Similarly sexual violence at work place being the most relevant contemporary issue and inspite of the clear direction given by the Supreme Court in Vishakha's case it is still a distant dream to be realised.
The Protection Of Women From Domestic Violence Act, 2005 was enacted to protect women from the rising instances of wife battering and violence within the family but we have yet to see how far it proves to be useful in combating instances of domestic violence.
Family and personal laws is another important area, which has demanded attention by all legal campaigners. It is also the most complex area since these laws have deep religious roots and based on different customs prevalent since ages in our society.
These laws define and regulate relationship between the members of the family; they relate to marriage, divorce, maintenance, custody of children, adoption and inheritance and stand apart as the only law in the Constitution, which are different for different communities.
In spite of the fact that most of the inadequacies and discriminations that all women face and share are common, these religion based laws are always savouring the logic of internal reform and it is the most difficult task to bring out change in this area of law.
The Family Courts Act, a well-intentioned piece of legislation, was introduced in 1984 but had not made much of the difference in speed, procedure or procuring justice.
Women have to wait all day for their cases to be called out. In family matters women generally go to the court as a last resort, yet insistence on a reconciliation process with mostly orthodox or inexperienced counsellors becomes problem.
After an amendment in Hindu Adoption and Maintenance Act, a Hindu women now can adopt a child during her maidenhood and even before the death of her husband. Now single women being economically independent have a choice of having a child through legal adoption.
The other side of personal law is the question of Uniform Civil Code and this controversy has a long history, which begins with the framing of the Constitution. This controversy has many sides as one side considers it the question of justice, equality, and the dignity of humans and the others view it as the elimination of all minority laws and invoke the fear of majority domination and patriarchal prejudice.
Effective rights in property, specially land are of critical importance for women's economic and social empowerment. Property or land rights do not just imply control over land but its meaning is found in social, cultural and economic terms, whether it be higher status, security against absolute poverty, the capacity to challenge male oppression and domestic violence, the ability to improve inter house hold distribution of resources, or even a symbolic sense of identity and rootedness.
Property even as means of survival has been systematically denied to most women by their natal and matrimonial families and inheritance has been substituted with gifts, dowry, stridhan or maintenance.
Recently Jessica Lall's case which has generated public outcry and nation wide outrage over the loopholes within our legal system and also forced reinvestigation of the case is certainly welcoming but how far reaching that time will tell. Supreme Court order of making registration of marriage compulsory will indeed make remarkable difference in the maintenance cases.
But one eternal question still remains- why women cannot use even the most favourable laws to their advantage. Lack of women's legal education and awareness and indifference and apathy of police and judicial system to these issues are the common causes.
(The writer is an advocate of
Allahabad High Court)