Chapter 4: Legal progress towards equality

Criminal Law (Amendment) Act, 2013 – The act came into force on February 3, 2013 amended as well as inserted new sections in the Indian Penal Code with regard to sexual offences. Some of the new offences recognized by the Criminal Law Amendment Act are acid attacks, voyeurism, stalking, intentional disrobing of women and sexual harassment. PoSH Act 2013 – the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act“) enacted by the Ministry of Women and Child Development, India. Workplace sexual harassment is a form of gender discrimination which violates a woman’s fundamental right to equality and right to life, guaranteed under Articles 14, 15 and 21 of the Constitution of India. The POSH Act had been enacted with the objective of preventing and protecting women against workplace sexual harassment (which include creation of a hostile work environment) and to address complaints of sexual harassment. Maternity Benefit (Amendment) Act, 2017 (“Maternity Amendment”) –2017 witnessed the bold amendment to the Maternity Benefit Act, 1961 (“Maternity Act“).The Maternity Amendment extends paid maternity leave for women employees with less than two surviving children, from the original twelve (12) weeks to twenty-six (26) weeks. A maximum of eight (8) weeks can be taken before the expected delivery date and the remaining after childbirth. Women expecting their third child were also provided with the right to take twelve(12) weeks of paid maternity leave—six (6) weeks before childbirth and six after. The Maternity Amendment provided for mothers adopting a child below three months of age, or “commissioning mothers” to take twelve (12) weeks of maternity leave from the date of receiving the child. The Maternity Amendment enables mothers to work from home after completing twenty-six (26) weeks of leave subject to their work profiles and the employer’s consent. The Maternity Amendment also mandates establishments employing 50 or more employees to have a creche which is required to have prescribed facilities and amenities. Women employees have a right to visit the crèche four times a day, including during their rest interval

Decriminalizing of Adultery –On September 27, 2018, a five-judge bench of the Supreme Court of India struck down another colonial-era law, Section 497 of the Indian Penal Code that prescribed a maximum imprisonment of five years to men for adultery. Unlike India’s sexual assault laws, which are linked with consent of the woman, the 158-year-old adultery law did not consider the woman’s will. Though women couldn’t be punished under the provision, a husband could prosecute the man who had sexual relations with his wife, even if the wife was a voluntary participant in the act. This was the second colonial-era law struck down by the Supreme Court after it struck down the 157-year-old law which criminalized gay sex in India. Triple Talaq –Instant Talaq or “Triple Talaq” or “Talaq-e-Biddat” is an Islamic practice that allows men to divorce their wives immediately by uttering the word “talaq” (divorce) three times. The Supreme Court, once again in its recent landmark judgment of Sayarabano Vs. Union of India pronounced on August 22, 2017, set aside the practice of “Triple Talaq”. The bench declared Triple Talaqas unconstitutional by 3:2 majorities. The Judgment by the minority bench also further directed the Government of Union of India to lay a proper legislation in order to regularize the proceedings of divorce as per Shariat law. The Triple Talaq Bill makes declaration of talaq a cognizable offence, attracting up to three years’ imprisonment with a fine. The offence will be cognizable only if information relating to the offence is given by: (i) the married woman (against whom talaq has been declared), or (ii) any person related to her by blood or marriage. Sabrimala Issue The Supreme Court on September 28, 2019, delivered one of the most keenly awaited judgment in the Sabarimala case. By a 4:1 majority, the Supreme Court permitted entry of women of all age groups to the Sabarimala temple, holding that ‘devotion cannot be subjected to gender discrimination’. The lone woman in the bench, Justice Indu Malhotra, dissented. Then Chief Justice Dipak Misra, Justice R F

Nariman, Justice AM Khanwilkar and Justice DY Chandrachud constituted the majority. The judgment was delivered in a 2006 PIL filed by Indian Young Lawyers Association challenging the centuries-old tradition of Sabrimala Temple banning entry of women of menstruating age inside the temple. Justice R F Nariman held that the customs and usages of Sabarimala temple must yield to the fundamental right of women to worship in the temple There are a great many difficulties that many Indian women face, which include poverty, female feticide, sexual harassment, lack of education, job skill training. India still ranks 140th among 156 countries in the World Economic Forum’s (WEF) Global Gender Gap Index, 2021 There are some laws in our country, which clearly favour men over women, according to Quartz India. In a recent UN report on India's legal code lists, here are some of them: Hindu laws of inheritance: Different religions have different inheritance laws. According to the Hindu inheritance law, the property of a woman who dies without a will is handled differently from that of a man. In the absence of spouse and children, the husband’s heirs inherit the woman’s estate. Parsi laws of inheritance: Despite decreasing numbers in the Parsi community, those who marry outside the community are penalised. A non-parsi woman who is either a wife or a widow of a Parsi man cannot inherit. However, their children can. But again, a Parsi woman marrying a non-Parsi man cannot be considered a part of the Parsi community. Prohibition of Child Marriage Act: The law only prohibits the marriages of children; it does not render them illegal once they actually happen. The married children, however, have the right to declare it void. A woman can call off a marriage until she turns 20, whereas a man has till age 23. Age of consent: Sexual intercourse with a girl below the age of 18 is considered rape. But since child marriages don’t get dismissed if it done already, a man can legally have sex with his wife even if she is a minor, as long as she is above the age of 15. Further, marital rape is still not criminalised in India. Rape of a separated wife: The rape of a separated wife carries lesser punishment than the rape of any other woman. Forced sexual intercourse with the former is

punishable with two to seven years of imprisonment. The prison for the rape of any other woman ranges from seven years to life. Marriageable age: The minimum age for marriage for a boy is 21, but 18 for a girl. This is a legal extension of the patriarchal mindset that believes that a wife should always be younger than the man. Hindu Minority and Guardianship Act: Women are still not equal guardians of their children. A father is considered the “natural guardian” of a child, although the custody of offspring under the age of 5 will ordinarily be awarded to the mother. The Goa Law on polygamy: A law recognises the second marriage of a “Gentile Hindu” man of Goa if his previous wife does not have any children before the age of 25 or if she does not have a male child by 30.