Author: Ms. Jayshree Navin Chandra, Senior Partner at Zeus Law
Article published in HIMSHIKHA, Annual special edition 2023
Women in India enjoy several rights and protections under the law which ensure equality between men and women. Moreover, recognizing the decades of oppression, discrimination and denial of opportunities in education, employment, and financial independence that women have experienced, affirmative rights have been made available to women enabling them to reclaim and assert their place at home, at work, and in society as a whole.
The Constitution of India ensures equality before the law and equal protection of the law by the State and prohibits the State from discriminating on the grounds of gender. It further provides for equal opportunity in matters of public employment irrespective of gender. The Constitution also empowers the State to make any special provisions for women and children. The Directive Principles of State Policy also provides for the States to make policies ensuring that both men and women have a right to an adequate means of livelihood, equal pay for equal work, right to just and humane conditions at work as well as maternity relief.
The legal rights of women in India can broadly be categorised into the rights and protections guaranteed to women in the workplace, at home and within society.
Several laws have been enacted by the Central and State legislatures to provide equal rights and protection to women in the workplace.
The Code on Wages, 2019 prohibit an employer from discriminating on grounds of sex. It also mandates an employer to pay equal remuneration to both men and women for the same work or work of a similar nature, irrespective of geographical location within India. Equal pay for equal work is one of the cornerstones of women’s liberation and their financial independence.
In striving to encourage meaningful participation of women in the workforce and ensure equality of opportunity for women in the workplace, it is important for the law to provide affirmative protections to women at the time of childbirth including adequate maternity leave. The Code on Social Security, 2020 prescribes different maternity benefits to working women in an organised sector including paid leave, paid leave in case of miscarriage and provide that discharge/dismissal of a woman absent from work due to her pregnancy is unlawful except with due procedures to be followed. The new Code also enables women to take care of their children while also maintaining their job. The Act is applicable to all mothers – biological, adoptive or through surrogacy; granting maternity leave for a period of 26 weeks (8 weeks preceding delivery) to the biological mother and 12 weeks in the other two cases. A further leave of 12 weeks (6 weeks preceding delivery) is allowed in each subsequent birth to a woman who has two or more children. In case of miscarriage, 6 weeks of paid leave from the day following a miscarriage are allowed. Moreover, the recent concept of work from home has been introduced for cases where the nature of work is such that the woman may work from home for the period of maternity benefit. Access to other maternity benefits such as nursing breaks, crèche facilities, and payment of medical bonus have also been provided for under the law. The Industrial Relations Code, 2020 also has several safeguards for women including equal remuneration, maternity benefits and a workplace with the required facilities for women.
Further, the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act and Rules, 2013 mandates every employer to ensure a safe and conducive environment for women at work and prevent sexual harassment at the workplace, which may be in the form of gender discrimination violating a woman’s right to equality and to live with dignity, or in the form of sexually tinted behaviour, direct or indirect, such as physical contact and advances, demand or requests for sexual favours, making sexually coloured remarks, showing pornography, and any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
In addition, the Indian Penal Code (in short, IPC) also deems sexual harassment as a cognizable offense under Section 354A, which means that the accused may be arrested without a warrant and will be punished with imprisonment for a maximum of 3 years and/or a fine.
As per the second Proviso to Section 149(1) read with Rule 3 of the Companies (Appointment and Qualification of Directors) Rules, 2014, every listed company having paid-up share capital of Rs. 100 crore or more, and every public company having a minimum turnover of Rs. 300 crore or more, is required to make provision for appointment of at least one woman director. The Registration of Societies Act, 1860 treats women at par with men to be a member or office bearer of an NGO. Even the Foreign Contribution (Regulation) Act, 2010 enables women to be at par with men to raise funds from foreign sources for running NGOs working for the welfare of people including women’s empowerment and leadership.
Women are entitled to various legal rights as a daughter, a wife, and a mother.
After the amendment of 2005 to the Hindu Succession Act, a daughter is now entitled to an equal share in the coparcenary property as the son. Even daughters born out of a live-in relationship of parents can claim their share in the self-acquired property of their parents. Under this amendment, female heirs can also ask for partition of the dwelling house, wholly occupied by the joint family. A minor daughter, legitimate or illegitimate, is also entitled to maintenance from her father under the Code of Criminal Procedure (“CrPC”).
As for regulating and protecting women’s reproductive health in India, the 2021 amendment to the Medical Termination of Pregnancy Act allows for termination of pregnancy of less than 20 weeks on the basis of the opinion of a single doctor and for pregnancy more than 20 weeks but less than 24 weeks on the basis of the opinion and approval of two doctors. The law also specifies the circumstances in which a pregnancy can be terminated, the certified people/doctors to perform the procedure along with the locations for the same. Medical practitioners are prohibited from revealing the name and particulars of the woman in concern.
The law in India also lays down certain cases wherein women can opt for termination of pregnancy. These include rape cases, unmarried girls under the age of 18, lunatics (with a guardian’s consent), pregnancies resulting from the failure of sterilization, as well as births of babies who may be handicapped or malformed.
Women in India also enjoy special rights, entitlements and protections under religious personal laws; for instance, under Muslim personal law, a Muslim woman is entitled to Mahr and other properties at the time of divorce as well as maintenance after divorce. Furthermore, the practice of triple talaq has now been declared void, illegal and is considered an offence.
The CrPC also obligates the husband to maintain the divorced wife (irrespective of caste or religion) except when she is able to maintain herself or is living in adultery or when she refuses to live with her husband without reasonable cause, or when both of them are living separately by mutual consent. In the case of sexual intercourse without consent during separation, section 376B of the IPC prescribes punishment for a term not less than 2 years, extending up to 7 years and a fine.
A married woman has the right to live in her husband’s home, which is the matrimonial home, even after the death of her husband. This is irrespective of whether the same is owned by either of them or is on lease/license, or is joint family property.
However, the right of parents-in-law, whether a senior citizen or not, to live peacefully overrides the right of a married/widow woman to the shared household. This view has been upheld by the Delhi High Court in the case of Ravneet Kaur vs. Prithpal Singh Dhingra and it means that she can be evicted, if it is necessary and expedient, at the behest of her aged in-laws in the interest of their maintenance and welfare.
The Dowry Prohibition Act treats the demand or grant of cash/valuables before/after marriage as an offence and provides for punishment along with a fine for harassment, cruelty (mental or physical) and unlawful demands for property/valuable security from the woman by her husband or his relatives
As a mother, a woman is entitled to maintenance from her non-dependent children. In matters of succession under Hindu Succession Act, a widowed mother has a right to an equal share to that of her son/daughter in the property of her husband as class I heir as well as in the partition of joint family/coparcenary property. She has the right to dispose of, by way of sale, will or gift, as she may choose, all the property owned by her. If she dies intestate, all her children inherit her property equally, irrespective of gender.
Women at home, whether as daughters, wives/widows or mothers, are entitled to protection from violence of any kind (physical, emotional, sexual or economic) within the family from the husband or his family under the Protection of Women from Domestic Violence Act, 2005.
For the holistic emancipation of women, it is imperative that the law creates and protects safe spaces for women in society at large. This commitment to women’s emancipation can be seen in the slew of recent amendments to the Indian Penal Code, 1860 (“IPC”) to prevent and safeguard women from sexual offences, viz. outraging her modesty (Sec. 354), sexual harassment such as unwelcomed contact, advances, sexually coloured remarks (Sec. 354A), assault with the intent to disrobe her (Sec. 354B), voyeurism (Sec. 354C), stalking (Sec. 354D), etc. In such cases, the woman has the right to file an FIR at any police station, irrespective of the location, regardless of whether the offence was committed under the jurisdiction of the particular police station, which is known as a Zero FIR. The Indecent Representation of Women (Prohibition) Act, 1989 prohibits indecent representation of women through advertisement or in publication, etc.
In order for women to seek enforcement of their rights and entitlements under the law, the Legal Services Authorities Act provides for an aggrieved woman to claim free legal services at all levels – district, state and national. Legal services include assistance in conducting any case or other judicial proceedings before any court, tribunal or authority and advising on related matters.
In furtherance of the Constitutional mandate, the States have enacted their own laws providing for the reservation to women in the Panchayat and other local bodies.
Empowerment of women, apart from being key to India’s growth, is also integral to protecting and nurturing human rights. While the necessary strides are being taken under the law in India to protect the rights, entitlement, interests and independence of women, across various spheres of life, in order for this to elicit tangible change in the lives of women, it is imperative to spread awareness about such legislation. Only when women are cognizant of their rights under the law and equity will they be able to enforce and assert themselves in meaningful ways. They will also be able to seek the protection they are entitled to and empower themselves within and outside the home economically, socially and politically.