[Please note there are more legal provisions added for women since this was written but this is not updated. Total number of women friendly provisions are more than 50 now]
Women empowerment has already hit our nerves with ever increasing number of women related crimes despite implementation of newer laws to bring gender equality. The reason we are never able to achieve so called gender equality with new sections in Indian Penal code is worth investigating –
Increase in women related crimes – is the statistics right?
Let’s take a look at how the statistics of gender inequality is created –
In India, we have a general notion that females are weak and hence they are prone to violence. In different gender discriminatory laws we have given women benefit of lodging complaints against men and women (mainly in-laws under family laws) even without any proof as women empowerment. Most of these complaints are criminal in nature and there is no punishment for the complainant even for filing false complaints. Any woman can file multiple complaints for the same crime under different penal provisions. Thus recording the same crime multiple times and exaggerating the statistics and showing false gender inequality.
For example, girls filing DV case are encouraged by the police officers, service providers and magistrates to file 498a by sec 5 of the act. This increases the official crime numbers reported and the same crime is reported under different sections. In most of these cases females are encouraged to file false cases for monetary benefits. This is leading to exaggerated reporting and these cases are choking the Indian judicial system with false cases, poor conviction rate and sustained gender issues.
This is leading to rampant misuse of gender biased laws. DV act was formulated based on Article 15(3) that allows ‘Special Provision’ for women empowerment and in a way can be considered as exceptions to Article 14 and 15 of Indian Constitution that talks about ‘Equality Before Law’ and ‘Prohibition of Discrimination’ respectively. If we look into the ‘extent’ these ‘special provisions’ can be granted. Let’s look at the constitution and the exceptions outlined for each of these –
Article 16 – Equality of opportunity in matters of public employment. Exemption 3 – Laws regarding some jobs being kept reserved for local population accepted by constitution. However, this exemption does not ensure all jobs in one state reserved only for people of that state.
Article 19A – Freedom of Speech and Expression, exception – restricted to reasonable extent by state. However we have experienced reasonable freedom of speech and also freedom for Indian press over the years.
Article 19B – To assemble peaceably and without arms, exception – certain religions are allowed to assemble peaceably with certain arms. However, in the name of exception people are not allowed to assemble peaceably with dangerous arms like AK47 etc.
Article 19C – To form associations or unions, exception – Freedom is restricted and the organizations are banned if its activities affect law and order of the state.
Article 19D – To move freely throughout the territory of India, exception – we need permission to visit certain states like Arunachal Pradesh but the number of states that require prior permission is still insignificant compared to total number of states in India.
Article 19E – To reside and settle in any part of the country – with reasonable restriction on settlement in states like J&K.
Article 19G – To practice any profession or occupation but not any that is otherwise illegal or lead to illegal acts.
In the light of above discussion we can see that in many articles in our constitution there are provisions for exceptions to ‘reasonable extent’ only. But for acts like DVA and 498a which were formulated in exception to Articles 14 and 15 of our constitution according to the ‘Special Provisions’ of Article 15(3) gives sweeping powers of extortion, legal damage and cruelty in the hands of daughters-in-law simply by virtue of their marriage. Thus these special provisions completely violate Articles 14 and 15 of Indian Constitution.
Over the years it is observed that whenever any pro-woman law is added in Indian Penal Code that is justified per Article 15(3) of Indian constitution. However, now Articles 14 and 15 were ignored and abused and a severely biased society is created. The ‘Special Provisions’ for women as per different special provisions of law are listed below –
- NCW Act 1990 – Formed a national body aided by the govt. with govt. resources exclusively for women and their empowerment. No such national or local body formed for men or boys.
- DV Act 2005 – Formed with the following benefits to women – DV cannot be filed by men against women, DV can only happen on women, no liability on the informant even for filing false DV case, employing a protection officer at govt. expense, registering a complaint without any proof, legal aid, informing her to file even more cases thus only increasing burden on Indian judiciary, govt. shelter home for women, service providers to restore DV act and they are FREE to do anything they want without any fear of legal action, treatment in any medical facility in the vicinity of the act if asked by the victim, application for relief under different provisions in one form even without starting different lawsuits, expediting the service of notice and the onus is on the protection officer and only a declaration by the protection is officer of serving the notice is enough unless the contrary is proved, speedy trial in such cases, assistance of welfare experts, Right to reside in a shared household whether or not she has any right in that house, aggrieved person shall not be evicted from the shared household without the provision of law, Protection orders for women, residence orders and eviction of offenders sometimes from their own houses, custody orders of children at any stage of the case (even on mere DV complaint), payment of compensation and damages even before the proof of charges, interim and ex-parte orders easily given only on the basis of affidavit, court to give copy of order free of cost, the protection order shall be in force till the aggrieved person applies for a discharge so women can enjoy these benefits lifelong and they need not have to earn a living at any stage until there is any counter case, multiple reliefs can be sought under different legal provisions for protection, custody, monetary, compensation creating a huge imbalance, breach of protection or interim order (and subsequent jail for the offender) may be granted only on the basis of victim’s statement and without any proof, no suit, prosecution or legal proceedings can be done against the protection officers for any of their acts.
- IPC 493 – Cohabitation caused by a man deceitfully inducing a belief of lawful marriage shall be punished upto ten years and fine. No such provision to punish women.
- IPC 497 – Only men are found guilty of adultery and jailed but adulterous women are exonerated.
- IPC 498 – Enticing, taking away or detaining a married woman with criminal intent. Punishment two years imprisonment for the man. No penalty for women committing the same crime.
- IPC 498a – It is considered that only husband or relatives of husband can subject women to cruelty, cruelty is defined only for women but the same acts done by women are not considered as cruelty.
- CrPC 198a – Women, according to local customs and manners, ought not be appear in public.
- CrPC 198(2) – No person other than the husband of a woman (with some small exceptions) should be aggrieved under section 497. What about husbands’ family whose name is ruined in the society for adultery of their DIL.
- Sec 13(1)(i) of Hindu Marriage Act, Section 27(1)a of Special Marriage Act, Section 32D of Parsi Marriage and Divorce Act 1936, Section 10 of Indian Divorce Act says adultery as a ground for divorce – No women can be blamed for an adulterous relationship and no child can be called illegitimate until there is conclusive evidence in support of this claim. Here there is no way left for the husband to prove adultery of his wife – DNA test reports can be done only by the order of a competent court, e-mail / electronic evidences are considered supporting evidence and not conclusive one, eyewitness statements not possible in any intimate physical relationship, courts may not order DNA test in order to save the child from losing parenthood and can be ordered only if it is in the interest of the child. Charges of adultery should be specific and should be established in all probabilities. The nature of these cases is quasi-criminal i.e. higher standard of proofs needed for than mere preponderance of probabilities. This in itself encourages women to be in adulterous relations and men on the other hand have no weapon to prove his wife’s misconduct.
- Section 112 of evidence act 1872 – states that a child born during a marital bond or where the spouses have access to each other or within 280 days of divorce will be considered as legitimate child from the marital relation no matter whether s/he was born out of marital bond. An illegal act by a woman is legalized by this act without punishing her and thus prostitution is promoted. The same immoral act by the husband would not only attract legal prosecution against the husband but also heavy financial burden of the wife in the form of maintenance will be granted in woman’s favour. The reality of the society is changed manifold since 1872 but the law remains same thus encouraging more women to have adulterous relations.
- Section 494 and 495 of IPC (bigamy charges) – Only the aggrieved person can file but if it is the wife who is aggrieved then her father being the lineal ascendant can also file complaint. Advantage given to the women.
- CrPC 125 – Any person refuses to maintain his wife…. Maintenance provision only for women. Violation of equal right and discrimination in the eye of law.
- In numerous provisions for maintenance for women. – In addition to DVA, sec 125, we have Sec 25, HMA, Sec 20 of HAMA. Not for men.
- Sec 298A and 298B – 3 months jail for eve teasing. No law for men when they are bullied by women in the same way.
- Sec 292 – If a man shows pornographic or obscene pictures, books etc to women he will be punished. No law when the offender is a woman.
- Sec 354 – A man guilty of assault or criminal force to outrage a woman’s modesty. No such law to prevent male abuse by women.
- IPC 509 – Man can be punished for intent to insult the modesty of any woman to intrude upon her privacy by a fine and one year in prison. No such punishment for women having intent to intrude in man’s privacy.
- Protections under the Factories Act –
a. No women should be given any shift other than between 6am to 7pm (Sec 66)
b. Prohibits women from being employed in certain jobs unless certain conditions are met.
c. Suitable sanitation facilities for women.
d. If more than 30 women are employed, the employer must provide a crèche with certain facilities in the factory premises.
e. No change of shifts except after a weekly or other holiday.
f. Maternity leave to be included in the overall experience of the woman employee.
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- IPC 375, 1860 – A man doing sexual intercourse without a woman’s will. No guideline as to prove a woman’s will here. She might have had consensual sex and still allege rape with a vindictive attitude.
- IPC 376  – Marital rape to be punished for two years and / or a fine or both. However, no definition or punishment for rape when women pressurizing men for sex in marital relations. No punishment for women raising complaint with malicious intentions.
- IPC 376B/C/D – Public servant/higher ups seducing a woman under his position and having sex with her is liable to imprisonment. No such punishment when women want sexual favours from men. No protection of men from any false and frivolous allegations made by women with malicious intentions.
- 73rd and 74th Constitutional Amendment (1993) – One third of seats be reserved for women.
- 84th Constitutional Amendment (1998) – 1/3rd reservations in parliament and state legislature.
- The Immoral Traffic (Prevention) Act, 1956 – Females offenders found guilty under sec 7 & 8 of the law is sent to correction centre and not to jail.
- The Married Women’s Property Act, 1874 (3 of 1874) – Husbands don’t have any rights over wife’s property on marriage and also no protection of husbands from wife’s pre-marital debts.
- Protection of Women against sexual harassment bill 2010 (tabled in parliament) – Completely biased against Indian men. This kind of bill only portrays a picture of Indian corporate that sexual harassment is rampant in the industry whereas the reality is completely otherwise.
Various welfare measures taken to empower Indian women
1. Mahila Sammridhhi Yojana (1993)
2. Rasjtriya Mahila Kosh (1992-93)
3. Indira Mahila Yojana (1995)
4. DWACRA Plan (1997)
5. Balika Sammridhhi Yojana (1997)
6. Convention of All Forms of Discriminations against Women (CEDAW) in 1993
Miscellaneous other benefits given to women
- AIDWA, UNIFEM – National and international bodies for women. No such bodies for men.
- Local Mahila Mandals
- Interim Alimony Benefits
- Pro-wife investigating procedures
- Child Custody
- Public, Judiciary, Politicians, Media, Police sympathy
- Movies, Ads, Entertainment along violence against women
- Tax Benefits
- Loan non-repayment concessions
- Education benefits – fee waivers
- Special score waiver in IITs and IIMs
- Live in benefits
- 1-way share in husband’s properties
- Special transport in Metro cities
- Statement power to file cases (rape, 498a etc)
- Public prosecutor, Legal aid
17.No punishment even for misuse of laws
Here, we would like to bring the point that the special provision in our constitution (Article 15(3)) was drafted in 1950s when the ground reality in terms of women’s social status, independence, education, ability to earn etc. was far less compared to present women.
If the UNDP Human Development Index (HDI) is any index worthwhile measuring the human development, we find that in 2011 we were at 0.547 below the SE Asia’s average of 0.548. In 2012, this figures are 554 and 558 respectively. In terms of our global position we have slipped to #136 this year compared to #129 in 2011. According to the same report this low performance is largely due to poor healthcare, education and less participation of women in workforce. From UNDP HDR 1990 and 2013 we will that Adult Literacy Rate for men and women increased from 47% to 57% (21%), and from 20% to 29% (45%) respectively between 1970 to 1985. However, between 1985 to 2012 this number decreased from 57% to 50% for men (14%) and from 29% to 27% for women (~7%). This is another dangerous statistics that works against the growth of our country. It is also noteworthy that in 1990 the National Commission for Women (NCW) was established.
In terms of women participation in labour force we find from the same report that in 1988, 25.6% of total workforce consisted of women. Whereas in 2012 it has increased only marginally to 29%. This figure also shows that the burden of taking up all the workload and thus the development work is still carried by the men in the country. This coupled with reduced literacy among men in the country, increased reservation for women in different jobs and govt. colleges specially in centres of excellence like IITs, IIMs, AIMS etc. and news like grace marks given to women in IIM Kolkata entrance making it dangerous for men in the country to live in as they are not getting education and also they are deprived of jobs.
In those early years of independence most of the women used to be inside their house and were hardly literate. Also the job opportunities for them were far less. Modern city women on the contrary are not only educated, well mannered and well trained but also are independent and have options to choose their own career. They go to pub, discs, smoke / drink / smooch openly signifying a sea change in the women’s world. Under this changed social scenario when the govt. has already spent crores in different programs to upgrade women’s status in the society, any hefty demand for alimony and maintenance not only need to be discouraged but also be refuted in most cases. This will ensure that all able bodied individuals earn their livelihood in a decent manner and contribute to the growth of this country rather than being dependant on someone else. Unfortunately these legislations are only creating more imbalances in the society and are acting as hindrance in women’s psyche as they continue to think themselves as destitute.
So the questions are –
Are we really helping women by these pro-women laws?
Are we still pushing them as well as this country back by constantly telling them that they are weak and hence need these extra benefits?
Why are we not considering development of men who takes care of most of the development work in India? How is that depriving men becomes enabling women?
Why don’t we spread legal awareness and awareness of women’s rights among the poor and illiterate in villages and help the real sufferers rather than creating an imbalanced society?
In this process very often we forget the importance of security and safety for senior citizens in the society. With increase in number of such laws coming in vogue every day (including the latest IRBM) law abuses will only increase thus increasing the number of pending cases in our courts. Divorce which is otherwise civil in nature has seen only criminal cases in recent years.
Most of the time these criminal cases run for years and at times even after the divorce of the couple and only the male partner’s family runs for cover all these years. Therefore the male partner would spend most of his productive years of life running behind court rather than excelling in his life goals. Adverse media coverage would add misery even if the accused is eventually acquitted of the case. Moreover if both partners don’t resettle at right age, they may not be able to resettle in their entire life.
The irony here is that when these cases are proved to be false, there is no punishment for women. By that time, the man and his family members waste their valuable time, money and energy that would have otherwise utilized in the progress of this country.
This defeats the basic purpose of Article 51A (J) of our constitution that talks about striving to achieve excellence in all fields so that we as a nation can march ahead. One can easily understand from this analysis that the women filing such false cases actually work on the contrary of this clause and hence need to be punished severely not only for ruining a family with cruel intentions and for misappropriating national assets (Judiciary, Police and other related assets) but also for violating Fundamental Duties outlined in the Indian Constitution.
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