Revised lecture on Women rights in India

1. Marital Rights of Women
DR. ASHA VERMA
GUJARAT NATIONAL LAW UNIVERSITY
GANDHINAGAR , GUJARAT

2. Marital rights in Gender Jusrisprudence
Three dimensions of gender in marriage: (Marriage –like relationships/live-in )
(1) economic factors, such as availability of wage employment, dowry expectations, and wedding
expenses;
(2) indicators of familial empowerment, such as women’s role in household decision making and access
to and control over resources; and
(3) markers of gender performance, such as observance of purdah and male-female separation in the
household.

3. Marriage & Divorce
 Article 16 of both UDHR and CEDAW.
 Equality of age in marriage.
 Women’s marriage age in India, its determinants and
consequences is a public health issue.
 Marriage is not just a cultural practice suggestive of women’s
status in society, but is also linked to multiple biological,
ecological, and geographical factors, each of which is crucial for
public health.
 Marriage is the ‘gateway’ to multiple health consequences
associated with the timing of child-birth.
 Gender equality — in terms of availability, accessibility and
utilisation of basic provisions and rights.
 For improving nuptial bottlenecks in India, we need economic
empowerment, social and intellectual empowerment and
stronger implementation of laws in the community.
Country Age for
Males
Age for
Females
India 21 18
Afghanistan 18 16
Bangladesh 21 18
Bhutan 18 18
Maldives 18 18
Nepal 20 20
Pakistan 18 16
Age of Marriage:

4. Dowry
 Dowry is prohibited by law in India.
Dowry Prohibition Act, 1961
Maintenance of Lists of Presents to the Bride and
the Bridegroom Rules, 1985
Section 304B IPC to be read with Section 113B of
the Indian Evidence Act, 1872.
Section 498A IPC

5. Domestic Violence
Domestic violence is also known as intimate partner violence, wife battering, cross
bedroom terrorism, or patriarchal terrorism.
 Key elements—
 violence,
 domesticity
 structural inequality

6. Domestic Violence and Laws in India
 The Protection of Women from Domestic Violence Act was enacted in
2005.
The act provides for civil remedies and protective injunctions like Protection
Orders, Custody Orders, Maintenance Orders, Residence Orders,
Compensation Orders, and so on, besides expanding the definition of
domestic violence and broadening the scope of the law.
 NCRB State-wise data (2018-2020)-Majority of cases under crime against
women under IPC were registered under ‘Cruelty by Husband or His
Relatives’ (30.0%)

7. Trend Analysis of Gender Based Violence complaints
registered by NCW (2019-2021)
The figure shows a visible increase
in some common forms of
gender-based violence legally
recognised in India, between 2019
and 2021.

8. Trends in domestic violence
during the pandemic

9. Restitution of Conjugal Rights

10. Legal Provisions related to RCR
 Remedy of restitution of conjugal rights (Section 9 of Hindu Marriage Act) is a beneficial privilege
because it allows divorced spouses to be together and cohabit.
 Other than the Hindu Marriage Act, there are special provisions in other personal laws in India
dealing with the restitution or restoration of conjugal rights.
 The following are the provisions:
 S.22 of Special Marriage Act, 1954
 S. 32 of Indian Divorce Act, 1869
 S.36 of Parsi Marriage and Divorce Act, 1936
 The constitutionality of restitution of conjugal rights provided under Section 9 of the Hindu
Marriage Act has been widely debated over the years.

11. Constitutionality of Restitution of
Conjugal Rights
 The debate revolves around the issue of whether Section 9 violates the
fundamental rights prescribed under Article 14 and 21 of the Constitution.
 Cases with respect to constitutionality of RCR:
 T. Sareetha v T. Venkata Subbaiah (1983)
 Harvendar Kaur v Harmander Singh (1983)
 Saroj Rani v Sudarshan Kumar Chadha (1984)
 It is an excessive intervention by the state into one's personal life.

12. Marital Rape
 According to NFHS-5 (2019-21), 29.3% of the married women (age 18-49 years) have
experienced spousal violence: physical and/or sexual.
 Section 375, exception 2 of the Indian Penal Code, 1860:
Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not
rape.

13. Is marital rape- a “rape”?

14. Crucial Issues while Criminalizing
Marital Rape
 How to define marital rape?
 Will deletion or substitution of exception 2 of S. 375 IPC
suffice?
 What should be the definition of consent for that matter?
 What should be the quantum of punishment in case the
offense of marital rape is proven?
 If not punishment, then can it be recognized a ground for
divorce?

15.  Rape in all circumstances causes a substantial degree of physical as well as mental trauma and leads to
severe consequences (Deepak Gulati v. State of Haryana, 2013)
 The Supreme Court, in the case of Independent Thought v. Union of India, (2017) 10 SCC 800 not only
repealed the exemption clause with reference to minor married girls but also acknowledged that adult
rape victims too face the same painful experience which constitutes a violation of the right to enjoy
good health under Article 21 of the Constitution.
 If there is any provision in the law, which derogates the rights provided to women under the Indian
Constitution, they cannot be countenanced or considered healthy, and must be altered if not deleted
(Joseph Shine v. Union of India, 2018).
 A law may be relatively practical and sensible at the time when it was enacted but over a period of time
and under changed conditions it may become obsolete, arbitrary and infringe on the principle of
equality and justice. (Satyawati v. Union of India (2008)

16. Recent Judicial Development on Marital Rape in
India
 In July, 2021, Division Bench of Justice A. Muhamed Mustaque and Justice
Kauser Edappagath of Kerala High Court in (X v. X) made several significant
observations while granting divorce to the wife:
 A husband's licentious disposition disregarding the autonomy of the wife is a
marital rape, albeit such conduct cannot be penalised, it falls in the frame of
physical and mental cruelty…Treating wife's body as something owing to
husband and committing sexual act against her will is nothing but marital
rape….Right to respect for his or her physical and mental integrity encompass
bodily integrity, any disrespect or violation of bodily integrity is a violation of
individual autonomy.
 Recent Del HC 2022 Orders on Marital Rape: A new wave of change in
perception towards Marital Rape.

17. Conclusion
 Legal reforms alone cannot bring justice to married women (v.POSCO).
 Apart from law, other relevant steps to protect married women include making them
socially and economically independent.
 Sufficient training and sensitization must be provided to the police, the judiciary and
other branches of the state machinery to deal effectively with cases of matrimonial
rights of women.
 The states need to establish centres and institutes to provide either financial or
mental support to the women in need.