THE PROTECTION OF WOMEN UNDER LAW AND RELIGION: AN ANALYSIS

THE PROTECTION OF WOMEN UNDER LAW AND RELIGION: AN ANALYSIS

Author – Mannat Sarao,
Student – 4th year Ballb hons,
Lovely Professional Univeristy, Phagwara

ABSTRACT

Every human being on this earth is born free and has equal right to freedom and dignity. It means that both men and women should feel secure and safe on this earth. But what has always happened is women have always been the victim of discrimination, exploitation and violence. In other words women have always been discriminated in social, economic and cultural sphere. Dualistic approach prevails in the society. On one hand women are put on a very high pedestal and worshipped as goddesses whereas on the other hand sanctions are put even on their devotion. History knows that world has always been considered as a theatre where men have put their autograph and left no space for women to put even her signature. But now society has started taking steps in the direction of transformation of status of women. Women have struggled hard towards this new identity and freedom. Increase in the consciousness among women had added drastically towards social movements and steps towards modernization. Inseparable from right is their guarantee legal and political. In this background purpose of paper is to discuss the path of evolution and provisions regarding to protection of rights of women as a nation’s human development and civilization depends upon its treatment given to women in diverse roles like mother, sister, wife and daughter. The way by which we may categorize whether a country is really free is the amount of respect and security given to women in the society. Generally men and women are considered as two wheels of the vehicle which drives the society, therefore a nation’s growth and all round development depends on skills, talent and abilities of all the people in the society regardless of caste, religion, sex and creed.

INTRODUCTION

Gender inequality exists all over the world. It primarily arises due to cultural legacies, historical development, geographic location and the religious norms which predominate in society.¹  Gender inequality is most influenced by the interpretation of religious texts and cultural and institutional set up of religious communities. It has different forms and effects in different religions. The role of religions in contributing to gender inequality varies across time and space. If we see history, the voice of women is seldom heard because of the male centric demeanors of social orders in which these religions rose, which inevitably moved a portion of the adjustments in the status of ladies trigged by these new religions. It is an inevitable truth that all religions of the world agree and appreciate the crucial role of women in the family life but at the same time it is also true that they don’t consider women to be equal to men.²  The roles of men and women are very much differentiated in the world religions. It is because women didn’t not influence the formation of religious norms.³  Due to this reason religion depresses women’s rights in general.

But now the times are changing. Today we are in the middle of a great revolution in the history of women. The voices of women are increasingly being heard now. In India, law is playing a very important role in empowering the women. Very recently, Judiciary through various judgments has intervened in the aspect and role of women as prescribed by religion. Law and religion have always been connected and they will remain so. But the difference is now law is being used to break the shackles of religion. A new interpretation is being given to religion and especially to status of women as prescribed by religion through the means of law. Supreme Court of India through its judicial activism has infused dynamism to women empowerment and gender equality in India. This paper is an attempt to analyse the various provisions of law in India which not only removes the discrimination against women but also empowers them.

SOCIETY, WOMEN, RELIGIOUS PRESCRIPTIONS AND RESTRICTIONS

There exist various rituals in different religions which involve a lot of practices that are discriminative in nature against women. These discriminations disguised as practices not only put sanctions on women in socio religious practices but also affect the women’s character, personality and status in the society.

In Hinduism, initiation of any religious activity or performance of any sacrifice is considered to be the privilege and responsibility of only men. Hindu rituals like which are observed after conception takes place and before the birth of child to secure the birth of a son clearly reflects the discriminative attitude of society towards the girl child. A male child is more desirable as prayers are chanted in these rituals which are aimed to prevent the birth of girl child. These discriminatory prescriptions which favour or prefer men over women makes women hold secondary position in the family as well as in society. Many rituals are performed and practiced in different parts of the country at the time of attaining puberty by a girl. These rituals are aimed at making her conscious about her fertility and also to prepare her for marriage. According to Dharmashastra and Yajavalkya, in past a ritual of upanayana of girl was performed which aimed at depriving a girl child from vedic education. This clearly established the domination of males in all the intellectual quests and even religion.

These inequalities are not only practiced in Hinduism but also in other religions. In Muslim culture, women are supposed to be obedient and submissive to their husbands as men are considered superior to women. A Muslim women cannot be part of any formal religious organization or legal affairs of the community. Women in Islam are denied to lead the prayers. They do not have any right to become Kazi or priest.  The restriction is to such an extent that “a woman should not fast if her husband is present, except with his permission”.⁴  Women encounter discrimination in various domains like right to choose husband, clothing, education and so on.

Impurity is one of the cardinal attributes imposed on woman by almost all religions. Women are considered to be polluted d
uring their menstruation. Almost all the religions consider women unclean during the menstruations and hence dissuade them from performing any religious activities. Society imposes impurity on the women on the reason of biological phenomena which is not even in their hands. This biological phenomena is used as an excuse to put restrictions on the intellectual and spiritual abilities of the women.

MODERN LAW AND GENDER EQUALITY

By and large law can’t be isolated by gender. Whatever law is relevant to men is likewise pertinent to women similarly. Nonetheless, some statues are planned only for women. It is done to inspire the nobility and status of women in the public arena. In India there are almost fifty acts applicable to women to uplift their status and prevent indignity to them. The Equal Remuneration Act, 1976, the Maternity Benefit Act, 1961, the Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994, the NREGA 2005, the Dowry Prohibition Act, 1961 and the Immoral Traffic (Prevention) Act, 1956 are some of the examples of the laws related to women empowerment in India.

Constitutional provisions

Constitution is the supreme law of the land and the guardian of the rights of people. It plays the most significant role is protection of women rights, eradicating discrimination against women and ensuring that gender justice is present. Article 12 to 35 of the Indian Constitution deal with fundamental rights of the people of India.

Article 14 of the Act reads as “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.”
 This article plays a pioneer role in protection women form discrimination. It gives two fold benefits to the women. Firstly it provides for equality before law and secondly it ensures equal protection of law. This provision has wide interpretation and empowers the women to stand equally with their counterparts.

Article 15 reads as “1. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them

2. No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to -access to shops, public restaurants, hotels and palaces of public entertainment; or – the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public

3. Nothing in this article shall prevent the State from making any special provision for women and children

 4. Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”

Thus Article 15(1) prohibits all kinds of discrimination on the basis of sex, caste etc. This covers the protection of women from discrimination. Also Article 15(3) makes special provision for the women favouring laws in order to protect the women and uplift them from such discrimination.

Article 16 reads “1. There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State

2. No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State

3. Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.

 Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.”

Article 16 ensures that everybody including women gets equal opportunity in matters relating to public employment. It specifically forbids discrimination on the grounds of sex.

These articles are all justiciable and form the basis of our legal-constitutional edifice.⁵  Not only the State is required to protect the women from discrimination but it is the fundamental duty of every individual to ensure that the dignity of women is protected. Directive principle of state policy put man and women on equal footing in respect of work and payment therefore, means of livelihood, education etc. In pursuance of directive principle of state policy steps has been taken under Article 243,243(A) to 243(D) are added to the constitution of Indian by constitution 73rd and 74th Amendment act 1992 to guarantee political power to women. Fundamental Duty under article 51 A (e) provides: “It should be duty of every citizen to promote harmony and the spirit of common brotherhood amongst all the people of India transcending, linguistic and regional or sectional diversities; to renounce practices to the dignity of women.” Thus it is the personal obligation on everybody to protect the dignity of women and not do any activity which derogates the rights of women.

The Supreme Court in Muthamma v. Union of India⁶  and Air India v Nargesh Mirza⁷  struck down the service conditions which stated that female employees are required to obtain government permission before marriage and the condition which denied married and pregnant women to be employed. These conditions were held discriminatory and in derogation of constitutional provisions which ensured gender equality by the Supreme Court of India.

In Vishaka v. State of Rajasthan⁸  , the Supreme Court observed that “Equality in employment can be seriously impaired when women are subjected to gender-specific violence, such as sexual harassment in the workplace.” Therefore the Apex Court issued guidelines to protect from sexual harassment at workplace and to guarantee them equal working conditions.

In Mackinnon Mackenzie & Co. Ltd v. Audrey D’Costa⁹  the Court observed “It is discriminatory that payment of wages to lady stenographers is less compared to their counterparts.” Thus it was made mandatory by the court that lady stenographers will get equal pay as that of men. Also it was held that the financial incapability of the management will not be the ground to seek exemption from the Equal Remuneration Act, 1976.

Equal Remuneration Act, 1976

By this act it has been made an obligation for every employer to pay a man and a woman equally for the same kind of work done. By this act it is ensured that no employer can do any kind of discrimination between a man and a woman while employing them for the same job or the job of same kind or while giving any promotion or transfer for the same job. This act is a good initiative to end an age old taboo which considered a man to be more efficient, productive and deserving than a women.

Hindu Succession (Amendment )Act, 2005

Until 200
5 daughters were not allowed to have an equal share of family property with the sons. Sons had the complete right over the family property and daughters enjoyed this right only until the time they got married. But with the act of 2005 females are now granted the property rights in the same way as that of a male. Now every daughter either married or unmarried is considered the part of father’s Hindu Undivided Family property.

The Sexual Harassment Of Women At Workplace (Prevention, Prohibition And Redressal) Act, 2013

It is an act formed with the legislative intention of protecting the women from sexual harassment at workplace. This act is an implementation of Vishakha guidelines given by the Supreme Court of India for the protection of women from sexual harassment and for the redressal of complaints of sexual harassment. This act is a way to end the gender discrimination and empower women as sexual harassment results in the violation of fundamental right of equality of a women, right to live life with dignity and right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment i.e. Articles 14, 15 and 21 of the Constitution of India. The sense of security which a women will get from this act will encourage women to work and carry on their profession resulting into their growth and economic empowerment.¹⁰

Ban On Prenatal Diagnostic Testing

Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994 is an Act of the Parliament of India enacted to stop female foeticides and arrest the declining sex ratio in India. The act banned prenatal sex determination. It is a very common tendency among Indian families to keep producing children until they get a male child. This is the basis of increase in the social discrimination among females. Hence the act was designed with the objective of preventing the misuse of diagnosis technique and to dissuade people from committing female foeticides.

SPECIAL PROVISIONS UNDER EVIDENCE ACT, 1872

Evidence of character or previous sexual experience is not relevant in certain cases¹¹ . However, where the question of consent is in issue, evidence of the character of the victim or of such person, previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent.
Presumption of abatement to commit suicide by wife is in favour of women. Law presumes that her husband and its relatives abated if wife committed suicide with seven years of the marriage. Similarly presumption in cases of dowry death, legitimacy of child and privileged communication are in favour of women¹²

EQUALITY VS RELIGION

Making law to sing with the tune of international community is easy job, but making women to realize that they are safe and secure at the national level is a herculean task which require will of the society, character, mindset and culture of the person implementing the provisions. Bombardment  of unrestricted electronic media with vulgar scenes pertaining to women exposing their body leading to develop lust in teenagers and age-old men have made the women prone to abuse and exploitation¹³.  The case of exploitation of women reached 2074 in 2013 from 1313 in 2012 and the rape cases increased to 288% from 2003 to 2013¹⁴ .Can the law protect the women at home?  Who is responsible for such inhuman behavior? A state has to respond these questions first before making bulk of laws. Judiciary is helpless, it can only sort out readymade solution to the problem that is why it held; ’’Sex in private is no misconduct’’¹⁵ and finally the Supreme Court legalized the concept of live-in-relationship. It is irony of fact that the women victim are still waiting to get benefit of ‘NIRBHAYA FUND’ and the Supreme court had to ask the Central government to formulate plan for relief and rehabilitation of rape survivors.¹⁶

Following judgements will show that customs and rituals have always been given preference by the courts even if they were arbitrary, discriminatory or in violation of the fundamental right of equality.

The State of Bombay versus Narasu Appa Mali¹⁷

The case was a petition filed by a Hindu man who got convicted for bigamy. It was his case that why there is discrimination between Hindus and Muslims. According to him it was discriminatory that Hindus are convicted for bigamy whereas it is not an offence for the Muslims. He pleaded that discrimination should be set aside. The Bombay High Court had ruled that “The personal laws and customs cannot be said aside or can be treated as subordinate to that of the concept of Equality.” Hence as a result by the virtue of Supreme Court it was observed that personal laws are outside the purview of Article 13.

It is the essence of Article 13 that all laws in force in India shall become void if it violates fundamental rights. Supreme Court observed that all the laws in India in force are subjected to Article 13 but the question to be determined is that whether religious rules, rituals and customs will also come under the ambit of all laws. The Apex Court answered the question in negative by giving the reason that Hindu and Muslim laws are based on religious scriptures and are not enacted by legislature or other competent authority which keeps them out of the ambit of Article 13. Hence it shows that here in this case law bowed before religion and religion prevailed.

Adi Saiva Sivachariyargal vs Govt. Of Tamil Nadu & Anr¹⁸ 

The case involved the issue that priests in Tamil Nadu Temple were being appointed only from the particular Brahmin Sect. It was said that the practice is discriminatory and hence was challenged. But the Supreme Court upheld the custom and observed that the restriction was not caste based.

 Sri Krishna Singh vs Mathura Ahir and Others¹⁹

The question for determination in this case before the Apex Court was whether a member of the Shudra community be allowed to enter an ascetic order when custom prohibited it. The Court answered in negative and favoured custom over equality and fundamental rights.

SABARIMALA JUDGEMENT: WHEN EQUALITY TRIUMPHS OVER RELIGION

The year 2018 is considered as a golden year in the legal history as it witnessed a landmark case  Indian Young Lawyers Association vs State of Kerala in which equality prevailed over religion and custom. Not only has this Supreme Court passed many revolutionary judgments in which it has parted from conservative thinking and customs. If we see history of approach followed by society and the courts, customs and personal laws have always been given upper hand over gender equality. It was always the case that public opinion strongly favoured personal laws and courts never until now went against it²⁰ . But with 2018 came the beginning of a new dawn.

HISTORY OF SABARIMALA

Sabarimala temple devoted to lord Ayyappa is situated in Periyar Tiger Reserve, Kerala. It is considered as the most important pilgrimage site by the Hindus. Women from age group 10 to 50 were banned from entering into the temple. It was because menstruating women were considered impure and hence kept away from temple premises and idols of god. One of the other reason to bar the entry of women was that the deity of the temple is considered to be in the state of Arddhasana which is considered to be mood of asceticism. And since it is believed that women are the source of sexual energy, hence the entry was banned. Also there is an another reason in mythology which goes as that one Mahishi was killed once and from his body a beautiful lady appeared who requested the Ayyappa to marry her. But
as the Ayyappa was a Yogi, he refused to the offer. But Lord Ayyappa promised her that he will marry her at the time when there will be no KanniAyyappas in his abode at Sabarimala. Hence it is the belief that if fertile women enters the temple it could enrage Malikappurathamma. Moreover before entering Sabarimala it is required that every devotee takes up penance for 41 days and stay away from alcohol, smoking, non-vegetarian food and all other tamasic things including sex, cutting body hair, shaving and even trimming the nails and should not sleep on the bed. They are expected to bath twice in a day and visit the local temples regularly and only wear plain black or blue coloured traditional clothing during this time. A crude explanation is that a man who has practised celibacy for 41 days will get distracted and lose his spiritual concentration around women devotees²¹ . The same routine cannot be followed by women, hence they are barred from entering.

ANALYSIS OF JUDGEMENT

Constitution bench of the Supreme Court by 4:1 majority held that the practice of prevention of women from entering the temple is unconstitutional and invalid²².  Till now the practice was followed and never questioned as it was considered an ancient custom which was sanctioned by Rule 3(b) of Kerala Hindu Places of Worship (Authorisation of Entry Act), 1965 framed by the Government of Kerala. Section 3 of the Act states “The places of public worship be open to all sections and classes of Hindus, subject to special rules for religious denominations.” Rule 3(b), however, provided for the “exclusion of women at such time during which they were considered to be impure and polluted.” These sections and provisions were against article 25(1), 26, 14 and 15(1) of the Constitution of India.

The fundamental right to practice religion of the women between the ages of 10 to 50 as recognized by Article 25(1) was meaningless unless they were allowed to enter the Sabarimala temple to pray. By calling a woman polluted during menstrual cycle, stigma is being attached to her. This is in a way practicing of discrimination which is very much against the Constitution. Moreover rituals followed by Sabarimala Temple priests are same as that in Hindu religion. In Hindu religion women are put on a higher pedestal than men so putting sanctions on their devotion cannot be said as the essential feature or custom of the religion.

TRIPLE TALAQ

The practice of triple talaq was a trend in India. The controversies related to triple talaq is that the pronouncement of word talaq thrice either oral or written leads to the end of marriage. In modern times many men used electronic means such as phone, mobile, SMS even social media to pronounce Talaq thrice for end of marriage. In landmark judgement of Shah Bano case²³  where Triple talaq was challenged via Public Interest Litigations, Supreme Court gave verdict by 3-2 majority. The essence of the 397 page meets the ends of justice and gives equality to the women. The court held that the practice of triple talaq is unconstitutional and violates fundamental rights of the Islamic women and it is used as tool or to threaten the women and court stated that until the new law is not made regarding triple talaq there would be injunction against husband to pronouncing instant triple talaq on their wives and the court gives the true justice to women by banning the instant talaq. The judgement of Supreme Court on triple talaq is landmark judgement which gives justice to the Muslim women and the danger of triple talaq that hang over their heads has been removed by the Supreme Court and also gives the message of gender equality .

ADULTERY

The word adultery has been taken from the Latin term adulterium. It means voluntary sexual action by a married person with another married individual. The law commission in his first draft of Indian Penal code concluded their views from all presidencies and stated it is best to treaty adultery merely as a civil injury²⁴  but after the commencement of India, sec 497 was always attacked on the ground that it was always against the spirit of equality before law. In 1951 one Yusuf Abdul Aziz²⁵  was charged with adultery and Bombay high court stated that it is unconstitutional and provides the clear cut license to the man to commit the offence of adultery. But Supreme Court rejected these arguments and concluded their views by stating that sec 497 is not unconstitutional and is not ultra-virus article 14 and 15 of Indian Constitution. The Supreme Court judgement clearly gives the conclusion that wife has no right to prosecute her husband .The judgement clearly stated the law cannot take the cases where husband has sexual relations with an unmarried women. Law provides free license under the law to have extra-marital relationship.

The Sec 497 of adultery became void on 27 Sep, 2018 by Supreme Court of India. The court held the law is unconstitutional because it treats husband as master and held that adultery is absolute privacy of married couples. A women cannot be asked to think as a man or as how the society desires such a though is abominable for it slaughter her core identity as the beauty of Indian constitution is that it includes I, You and We. It’s time to say that a husband is not the Master.

CONCLUSION

It is true that all the members of the society must be equal before the law yet this equality is equality regarding the execution of the law i.e., benefiting from justice- not equality in social value and determined rights. Along these lines we see that a large portion of the national instruments accentuate on two words: Equality and Non segregation. These standards ensure uniform treatment regardless of the confinements which the ladies endure. As such women require special measures for their assurance remembering their physical characteristics, humility, respect and security. Women require equality in fact, uniformity in law which forbids segregation. Women are frail, unassuming, helpless and bashful. They require expanded methodology for their insurance so that they protecting their way of life as ladies may build up their identity.
Fear plays an important role in human life. The protection of women should be judged on the basis of intensity of fear among women community in respect of their security, property, liberty and modesty. History knows the armed conflicts and its effects on women. Rape is used as weapon of war, a strategy used to subjugate and terrify entire communities. Who is responsible for such injustice and barbaric treatment with women community in this civilized world? Is this response of the highest authorities effective and sincere to the cause of women protection?
However, making provisions, laws and holding conferences to mourn on the pathetic conditions of women is not sufficient. The true protection lies in the will of the state and mindset of the persons involved in implementing the provisions.
So far as protection of women under religion is concerned it can be looked into keeping in mind the basic philosophy of the religion, the universe, mankind and society²⁶.  Religion emphasizes not only on the worldly life but also on life after death whereas man made laws are concerned with external behavior of man in its different form in the worldly life. Religion stresses on both internal and external purity, the modern law gives importance to external expressions. Religion is concerned with preventive measures, causes and cure of the disease which a man suffers on the other hand law is satisfied with cure by giving antibiotic. Sanction behind religion is both psychological and temporal and law talks about coercive force for implementation of law. Most of the religions lost its originality. The status of women as it is stated in different religion is the narration of persons of time, who
interpreted it according to the time and place either suited to the state or changing norms of the society. Religion confers rights with corresponding duties keeping in mind the purpose of creation of the world and mankind who can achieve the object by leading a particular lifestyle. Religion emphasizes on character, human values and brotherhood. Law emphases on reason and see only biological phenomena of a person ignoring its objective test. Men and women are two important wheel of chariot of life. She is as important as a man in life. Man and woman are equal up to certain extent but their role in society and need in life is different. Gender discrimination is like a subtle sickness that has lodged itself in the sub consciousness of both man and women as well as in the structure of society. This makes it one of the worst in equalities to fight against. Realization of women’s rights in such circumstances remains still a dream. Hence an identical equality may jeopardize the very object of creation and it is bound to fail. Compulsion cannot bring fruitful result unless intrinsic traits of human beings are improved. Law is not the brooding omnipresence up above the sky; it must have some connection with reality of the society. Hence there is a need to develop a kind of culture, respect, understanding and habit of sacrifice to the human values with open mind which may provide a real protection to women in society.