JOURNEY OF WOMEN FROM MEDIEVAL INDIA TO MODERN INDIA- LEGSLATIVE FRAMEWORK AND CUSTOMARY PRACTICES
Author: Sonali Khandelwal, IV year of B.A.,LL.B. from Bharati Vidyapeeth University, New Law College, Pune
Introduction
The status of women in India has always been subject to manychanges over the period of time. In the Ancient times, women enjoyed equal status in the society as that of men, unlike today. They were treated and worshipped like goddess. The practices like sati system, child marriage and Dowry system were not in existence. Women during this period used to marry at a mature age and they even got the freedom to choose their own husband in an assembly called ‘Swayamvar’. They were allowed to gain high intellectual standards. The discrimination between men and women was observed primarily during the Medieval Period. Female infants were killed soon after their birth. Practices such as dowry system, sati practice, female infanticideand child marriage always led to decline in their status and made it more difficult to uplift their position in the society.
During Medieval period, it was very challenging for a women to survive. Indian males were crushing females through many ways such as practice of polygamy, devadasi, forced illiteracy, sexual assault and harassment, etc. The words Chamchori and Jorawari were used to describe sexual offences.The primary duty of women were to handle the day to day household chores. They were not allowed to attend the school, take part in sports or any other curriculum as it was believed that women were meant to be caged within the four walls of the house.
Amid the Medieval period, the status of women reached the lowest point in the society. The literacy rate was so low among women that hardly one women in a hundred was able to either read or write. Evil cultural and social practices, inhuman treatment and adamant religious belief caused the greatest degree of breakdown which made the Indian society static. After years of social struggle and terrible suffering, social reformers felt the need of awakening people against the injustice meted out to Indian women.Raja Ram Mohan Roy, Ishwar Chand Vidya sagar, Jyotirao Phuleand many other social reformers started giving more stress towards women education, abolition of practices like child marriage, polygamy, sati, dowry system, etc.
During British East India Company and British raj, several legislations and regulations were enacted by the British Govt. to safeguard the interests and dignity of women. However, it was not easy to ensure the implementation of the legislations passed during this period. After Independence, The Indian Govt. has enacted several legislations to empower women in every aspects of life. Women in modern India have attained high ranks including that of the President, Prime Minister, Speaker of the LokSabha and so forth. The objectiveof this article is to analyse the laws related to women and its evolution since Medieval Period.
Abolition of Sati
Sati was a practice among some of the Asian communities in which a recently widowed women was either voluntarily or forcefully pushed to commit suicide on the husband’s pyre.This practice was made a cultural norm by the society and the priests.
After years of struggle, the then Governor General of India, Lord William Bentinck, with the help of Raja Ram Mohan Roy’s efforts led to the abolition of ‘Sati’ practice in India in 1829[i] making it illegal in all jurisdictions of British India and subject to prosecution. Although the practice was not completely stopped but an awareness about its ills was created. This was for the first time in the history of women struggle that a law was passed for the welfare of women in the Indian society. The regulation act of 1829, however, led the founder stone for many other social reforms.
Later in the year 1987, the Government of India enacted The Commission of Sati (Prevention) Act.[ii] This act seeks to prevent and prohibit the evil practice of sati and glorification of this to the whole of India.
Widows’ Remarriage
Ishwar Chandra Vidyasagar, who was working for betterment in the situation of Hindu Widows, led to the legalisation of Hindu widows’ remarriage in 1856.[iii] It was the first social reform legislation after the abolition of Sati in 1829 by Lord William Bentinck. This act safeguarded the lives of Child Widows whose marriages had not been consummated. However, a clause in the act stated that the widow who remarries shall lose the limited right of inheritance that she had in her dead husband’s property. This proved to be a disadvantage to the castes which had allowed remarriages to their widows even before the British Government had enacted such law.
Female Infanticide
India is a country which is overburdened by its cultural, social and religious norms. One of such norms is killing of infant girl (Female infanticide) as it is believed that a girl always brings bad luck to the family. These horrible and brutal killing of girl child are advocated on two grounds. One of them being the preference of male child over girl child. They are preferred because they take forward the family lineage and according to Hindu Mythology, a male child is considered to give his parents the ‘Moksha’ (soul salvation).
The second reason is that a girl in the family is seen as a financial burden. In a family, son is an ‘asset’ whereas daughter is an ‘economic burden’. During her marriage, the bridegroom demands huge amount of money (dowry), thus creating a problem for poor families who are unable to afford it. Many a times, the parents have to mortgage their property to fulfil the demand for dowry. The main cause thus for female infanticide is the Dowry System in India.
Female infanticide in India finds its root in the history spanning centuries. The demand for saving girl child arose as early in 1860s where India was witnessing large number of death among infant girls. The protest by social reformers led to the enactment of Female Infanticide Prevention Act, 1870 by the British Govt. Later, after independence, this act was suspended by the Indian Govt. and new provisions were made to safeguard the lives of female infants.
Female Infanticide is now a criminal offence within the territory of India. Section 315 and 316 of the Indian Penal Code, 1860 lays down punishment for infanticide with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.
Sex selective abortion/ Female Foeticide
Female Foeticide is the process of killing female baby in the mother’s womb. According to Ms. Sihe: “The killing of girl child after her birth is prevailing in our society for decades. But female foeticide is the legacy and contribution of the process made by the improvement of medical science.”[iv]
During 1970s, the population of India was at its peak resulting in many social and economic problems. Nevertheless, the preference for male child was predominant in Indian families. The common practice then was of producing multiple children until a male child was born. This ultimately led to the sudden increase in the population which became the root cause for unemployment leading to poverty.
In 1971, the Govt. enacted its first abortion related law called The Medical Termination of Pregnancy Act, 1971. This law was enacted to safeguard the lives of rape victims from any medical risks. However, the Govt. was unable to foresee the possibility of this law getting misused by the advancement of technology. In 1980s and 1990s, the ultrasound and imaging machine and scanner gained popularity. These machines helps in determining the sex of the foetus which ultimately leads to abortion in case the foetus is found to be of a female child.
The practice of Foeticide however led to the decrease in the sex ratio of the country. According to Census report of 1981 and 1991, the sex ratio of female has shown certain decrease in number from 934 females per 1000 males to 927 females per 1000 males respectively. Sex ratio helps in measuring the extent of prevailing equality in the Country at a given point of time. Since in the last two decades India witnessed the decrease in female sex ratio, the Govt. passed the Pre- Natal Diagnostic Techniques Act, 1994 making sex selective abortion illegal. This act was later amended by the Parliament as Pre- Conception and Pre Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 2003.[v]
Nonetheless, the constitutionality of the act was challenged for being in violation of Article 21 to the extent that one should have the ‘liberty’ to determine the sex of the child. The Bombay High Court dismissed the petition and upheld the constitutional validity of the act.[vi]
Child marriage
Child marriage may be defined as a marriage between a minor girl and a minor boy or a marriage between a minor and an adult. This practice was yet another evil cultural practices prevalent since Medieval India. According to UNICEF: “Child Marriage affects both girls and boys, but it affects girls disproportionately.”[vii] Child marriage does not only violates children’s right but also put minor girls at high risk of sexual abuse and exploitation. Besides this, they may suffer from severe heath issues due to early pregnancy.
In 1891, the British Govt. passed the Age of Consent Act, 1891 to safeguard the interest of minor girls who were subjected to undergo early marriage. This legislation intended to raise the age of consent for sexual intercourse for all girls irrespective of their marital status from 10 years to 12 years. The Sharda Act of 1929 was a big leap. The Child Marriage Restraint Act of 1929 popularly known as the Sharda Act fixed the age of marriage for both girls and boys at 14 years and 18 years respectively. However, The Sharda Act was later replaced by the legislation passed by the Indian Govt. which further raised the age of marriage for girls and boys to 18 years and 21 years respectively.[viii]
However, it was not easy to ensure the implementation of the legislations passed amid medieval period. The British Govt. was not interested in pushing their implementation beyond a limit and some sections of the orthodoxy amongst the Indians were anyways opposed to them. Mahatma Gandhi encouraged women to participate in the freedom struggle. Thus, they entered the public sphere under his leadership. He inspired them to participate in the political meetings and the making and selling of Khadi. Many ladies emerged as leaders in this phase and became an ideal for other females to follow. Some prominent examples are Hansa Jivraj Mehta, Avantika Bai Gokhale, Prema Bai Kantak, Durgabai Deshmukh, Sarala Devi and Sarojini Naidu, etc.
In a remarkable speech in the Constituent Assembly in 1946, Hansa Jivraj Mehta stated that “Indian women have never asked for privileges, all that they desire is fairness and equality.” Although several provisions have been made for women, still today they are seen struggling to acquire equal status as that of men in the society. In the first two decades of 20th Century, organizations like the Women’s Indian Association, National Council for Women in India, All India Women’s Conference and Baharat Stree Mahamandal worked continuously to secure rights for women.
Constitutional Provisions for women
The atrocities against women is not a new concept in India. It find its root in the history spanning centuries. As stated above that right from the medieval period they have been subjected to many atrocities like sexual abuse, rape, violence, homicide, exploitation, unequal treatment and what not. They have been treated as second class citizens and their desires and needs were always an afterthought. The people of India always considered women as the weaker section of the society. Even in the 21st century, they have to face difficulties in every field they choose, be it in education, job, sports, etc. The position of Indian women was legally secured by the Indian Constitution, formulated and implemented after the nation’s independence.
The Indian Constitution (herein referred to as ‘the Const.’) is the supreme law of the land. Any act or provision of the act or any law passed by the Legislature, if found to be in contradiction with the provisions of the Const. stands null and void. The Preamble of the Const. secure liberty and equality to all its citizen. It does not discriminate between individuals on the basis of sex, race, caste, religion, etc. It provides for equality before law, equality of opportunity in matters relating to employment and appointment and does not look up to men and women differently. However, there is a thin line of misconception being drawn between being equal and being identical. The Const. empowers the state to make special provisions for protecting the interests of women.[ix] This is the reason why Article 42 that provides for special maternity relief for working women does not violate Article 15(1). It also prohibits all such practices which are derogatory to the dignity to the women. Moreover, it is a Constitutional mandate to reserve one-third of the total seats for women in Panchayats and Municipalities.
However, many smaller steps were required to implement the rights and duties that the Const. granted to its citizens. Accordingly, the Govt. of India constituted organisations like National Commission for Women (NCW) and State level commissions on the same model for effective solution for their problems. The NCW is a statutory body of the Indian Govt. Its major role is to advice the Govt. in policy matters related to females in India.
The famous Sabarimala temple case[x] proved to be a landmark judgement in empowering and strengthening women in the society. The prohibition of menstruating women entering the temple was struck down by the Supreme Court citing that such practice was discriminatory in nature and hence violates Article 14 and 15 of the Constitution. The Apex Court also lifted the ban on women entering The Haji Ali Dargah.[xi]
Legal Provision for Women
The practice of dowry system in India is the root cause for many atrocities against women. The cases of female foeticide and domestic violence is rising due to the prevailing practice of payment of dowry in India.This has proved to be one of the reasons that why a girl child is considered as a financial burden to the family. Although this practice has been prohibited by the govt. as theDowry Prohibition Act of 1961, it is still practiced in some parts of the country. To make this act more effective, Section 304B and Section 498A were added to the Indian Penal Code, 1860. These sections also deals with any cruelty or harassment by husband or his relatives against the wife. Domestic Violence Act of 2005 was a major breakthrough. Besides physical, sexual and economic abuse against women, it coved emotional abuse as well.
Rape is one of the most common and heinous crime committed in India. It is one of the offences committed against human body under the IPC. Rape is wrongdoing of viciousness, frequently considered with the aid of using the woman as a hazardous demonstration wherein dread and humiliation are her overwhelming feelings. The Nirbhaya case of 2012 not only shook the people of India but also became an International concern where a 23 years old Delhi girl was brutally gang-raped by six men in a private bus and later thrown out of the moving bus. The Verma Committee Report three months after the rape was a big leap. The Criminal Law (Amendment) Act of 2013 amended dozen of specific laws including the Indian Penal Code, The Code of Criminal Procedure, and The Evidence Act. Sections like 326A, 354A, 354B, 354C, 354D and 376A which deals with acid attack, sexual harassment, assault or criminal force to woman with intent to disrobe, voyeurism, stalking and punishment for rape respectively were added to the IPC through this amendment. Although the amendment of 2013 was criticized for being gender biased and for not penalizing marital rape etc.
Conclusion
The laws related to women have evolved in an extraordinary manner. The Govt. has played an important role in uplifting and empowering women in the society. The prohibition of Dowry system, child marriage and female foeticide was a remarkable step taken by the Govt. The governmental opinion is tilting heavily towards harsher punishment for rape in general and rape of minors in particular. The Indian Govt. is taking conscious and concrete measures to safeguard the rights and dignity of its female citizens. Strong legislations related to female rights and dignity are being promoted to assure long lasting change. Despite of several legislations, some practices are still prevalent in the rural areas and other backward classes of the society. Crime against women occur every minute and throughout the year, though many such crimes go unreported due to the fear of humiliation by the society.
Women in India has struggled a lot to hold a respectable position in the society. India has always been a patriarchal setup where men enjoys ultimate respect. Women are still considered as sub-ordinate to men. More stringent laws are required to be passed in order to deter crime against women. Time lapse between Crime and Punishment established by law had an impact on whether the person related the punishment to the crime. There should be no long time between crime committed and punishment for the crime. There need to be no hope of getting away with the crime. Possible penalties established by law must overweigh the potential benefit of crime.
[i] The Bengal Sati Regulation, 1829, No. XVII, Acts of Governor-General in Council, 1829 (India). [ii] The Commission of Sati (Prevention) Act, 1987, No. 3, Acts of Parliament, 1988 (India). [iii] The Hindu Widow’s Remarriage Act, 1856, No. XV, Acts of Governor- General in Council, 1856 (India). [iv] Ms Shalini Sihe, Female Foeticide and Gender Inequality: A Ban to Woman Empowerment, 7 Int. J. Sci. Res. 6-7 (2018). [v] The Centre for Enquiry into Health and Allied Themes (CEHAT) v. Union of India & Others, A.I.R. 2003 S.C. 3309. [vi] Vinod Soni & Anr. v. Union of India, 2005 CriLJ 3408. [vii]UNICEF and UNFPA, Ending Child Marriage in India, 2017, https://www.unicef.org/rosa/what-we-do/child-protection/child-marriage. [viii] The Prohibition of Child Marriage Act, 2006, No. 6, Acts of Parliament, 2007 (India). [ix] INDIA CONST. art. 15, cl. 3. [x] Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors., (2019) 11 S.C.C. 1. [xi] Dr. Noorjehan Safia Niaz v. State of Maharashtra & Ors., 2016 (5) A.B.R. 660.