A Three-Day Immersive Online Legal Awareness and Certificate Training Course on “Reproductive and Conjugal Rights of Women in India”
A Three-Day Immersive Online Legal Awareness and Certificate Training Course on “Reproductive and Conjugal Rights of Women in India” is an initiative of the Gender Impact Studies Center (GISC), at the IMPRI Impact and Policy Research Institute, New Delhi, and ran for three consecutive days starting from December 22, 2022 to December 24, 2022. The online paid certification was aimed to provide attendees with an enriching experience on the gender discourse with a special focus on women’s rights and the much-discussed reproductive rights in India.
The first day of the program included an insightful and enriching discussion delivered by eminent speakers, Prof Vina Vaswani, Director, Centre for Ethics, and Professor, Department of Forensic Medicine and Toxicology at Yenepoya (Deemed to be) University, Mangalore; Prof Mala Ramanathan, Professor, Achutha Menon Centre for Health Science Studies, SCTIMST, Thiruvananthapuram and a Working Editor at the Indian Journal of Medical Ethics (IJME); Prof Bijayalaxmi Nanda, Principal and Professor of Political Science, Miranda House, University of Delhi and Advocate Audrey D’Mello, Director, Majlis Legal Centre, Mumbai. The event was chaired by Prof Vibhuti Patel, Visiting Distinguished Professor at IMPRI and a Former Professor, Tata Institute of Social Sciences (TISS), Mumbai.
Day 1 | December 22, 2022
The session was opened with introductory and welcoming remarks from Prof Vibhuti Patel and was further moderated by her. The first-day session was opened by Prof Vina Vaswani, who presented an elucidating lecture on ‘Reproductive Justice and Public Health Concerns’ by opening with a brief outline of her presentation, tracing the locus of the issue with accessibility and equality in public health when it comes to the accessibility of free and safe maternal care and abortions, ingrained stigma and the larger discourse on Gender disparity.
She further spoke on highlighting the changes that the COVID-19 pandemic brought on infrastructure development in the area and tries to invoke dialogue and deliberation on the ongoing issue, or more of a pandemic in a pandemic, the rights of women and the shackles of patriarchy that hinges upon equality and human rights. The session is opened with highlights on reproductive rights and the need for reproductive justice– the protection of reproductive rights and its accessibility against stigma against safe and legal abortion and family planning which involves the choice of a woman, safety against sexual violence, and the accessibility to reproductive products like birth control.
Prof Vaswani then draws a well-articulated picture of sexual abuse prevalent in children and women in India through informed statistics and sheds light on the grimace the vulnerable groups face, especially during difficult times of a Pandemic. To further find solutions to ongoing issues of sexual abuse and assault, she lays down a discussion on existing policies such as the Universal Progress Review (UPR) that aims to improve the Human Rights situation in each country through an on-ground evaluation system to mitigate the roots of existing problems and further promote the protection of human rights.
The presentation ends with the drawing of the necessity of awareness and sensitization toward reproductive rights, accessibility, and sex education, especially in underdeveloped and poor regions of the Global South as well as an overall understanding of choice and gender parity in the same discourse. On an ending note, Prof Vaswani drew her conclusion on the need for policies that are more gender-sensitive in every nation’s public health infrastructure and urges the larger international space to be more aware and inclusive.
Adv Dr Shalu Nigam straight away delved into the discussion further with her presentation on ‘Conjugality, Sexuality, and Women Rights in India’, with a staunch presentation on ‘Live-In Relationships and Legal Safeguards for Women’, aimed to take a two-fold enriching discussion on violence against women and the institution of live-in relations in India today. The presentation opened with historical excerpts from the past on domestic abuse and violence, even statistical data on the murder of wives by their husbands from the 80s and 90s in India. The raw depiction of such gender-based atrocities was followed by the question of its demise. The idea that marital homes are no more safe for women is further reestablished strongly with the rise in cases of murders, abuse, and marital rapes of women by their lawful husbands, some even including sex trafficking of wives and children.
However, the notion of murder in married couples is no more just the norm and it is here where Dr Nigam brings in the question of safety and ethical boundaries in live-in relationships– a modern concept where two consensual adults choose to live together without being legally married. The question of danger and safety took a new turn after the brutal murder of Shraddha Walker by her partner in Delhi. It is here where the question of taboo-induced negligence arises. Do women in socially unacceptable live-in relations deserve to have their justice neglected? The already lackadaisical nature of the legal institutions takes a major backseat in such cases, leaving women rights activists questioning the idea of safe space and equality in the Indian Law system and the legal structure. The question of Law vs. Morality is arguably raised, where and how do women seek justice if society thinks they deserved what happened to them because a certain way of life is considered unacceptable?
The idea of illegitimacy in law, for unique cases under live-in relations, has forced the Supreme court to uphold new guidelines to ensure justice is delivered. Adding live-in relations under Art 19 (a) right to freedom of speech and expression and Art 21 protection of the right to life and personal liberty has helped shed much importance on the concept of danger and against it, justice in situations of taboo. Dr Nigam’s unique and important presentation ended with the need to divert from the most acceptable social institution which is marriage and to branch into newer such institutions that have the capacity to harbour equal danger upon women. A brief discussion on existing laws and rights for live-in relationships helped enrich the discussion further.
Prof Mala Ramanathan carried the discussion forward by delving into the topic with her own presentation on ‘The Law and Gendered Access to Abortion Services for Married Women in India’, giving her own perspective to the enriching discussion and shedding light on a topic of much importance. She opens by thanking the earlier experts for their much broader focus on two important perspectives– law and theoretical aspects and moves on to focus on how the law has been changed to meet Gender parity in India in terms of accessibility. She opened her discussion with the amendment of the Medical Termination of Pregnancy Act in September of this year by shedding light on the change in the global space towards gendered violence in terms of pregnancy and abortion and the rising change towards modernity and women empowerment in Indian society that obliged the Supreme Court to a much-needed amendment.
Lastly, she focuses on the necessities that women’s rights activists must uphold and preach so that all women realize their reproductive rights in front of the law and how they can be felt safe and seen. She opens her discussion with the need for change in the Act due to mismatch and arbitrariness in the existing law, making accessibility a matter of disadvantage to the person seeking an abortion. The new change sees and acknowledges that marriage isn’t the only source with which two adults engage in sexual activities that results in accidents that require access to safe abortions, but unmarried couples as well. The necessity to acknowledge accidental pregnancies and cut the taboo toward sex before marriage has led to its amendment.
The amendment also sees and acknowledges the Protection of Children from Sexual Offences (POCSO) Act as well as rape and child abuse. The new amendment also extended the abortion period to 24 weeks from 20 weeks, the magnanimous change came to post the disastrous ruling of Roe V Wade in many states of the USA, delegitimizing abortion and accessibility to safe birth control. She ends her presentation with a lucid brief on the existing National Family Health Survey (NFHS) data in India talking about rising abortion and accidental pregnancy rates in India and the fruitful results of the new amendment. However, she urges sensitivity and awareness in rural and poor areas where women are fearful and lack knowledge of abortion and safe ways of birth control.
The session ended with a brief presentation on ‘Reproductive Rights and Gender Biased Sex-Selection– Dilemmas of Feminist Politics’, by Prof Bijaylaxmi Nanda articulating an impending danger in achieving India’s Sustainable Goals of Gender equality. She opens her presentation with the concept of gendercide, an ongoing homicide against baby girls in India who are killed before or right after birth. Elucidating further with statistical data highlighting the falling sex ratio of women against men, she highlights that gender bias, taboo and the need for a male child, ingrained in the patriarchal society make policies reach and change the ingrained stigma systematically and sustainably. She further highlights Feminist dilemmas that further question if laws or state institutions are a source of change or just a hand of oppression.
Their forms as conformists, activists, and change-makers, seek answers to existing questions on how one can change the current situation. Prof Nanda further highlighted the loopholes in the existing Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act that is aimed to protect female foeticide and protect the disproportionate child sex ratio in India, through Mitu’s story who was coerced by her marital home to abort her twin daughters due to flaws in the Act, leading her to leave her home. The lack of awareness and publicity made the Supreme Court reenact the law and protect women’s rights in India. She ends her presentation by acknowledging the ingrained stigma and patriarchal norm that empowers the continuation of female foeticide but also highlights society’s progress, and how mothers are protecting the rights of their daughters through rightful birth and education.
She shares personal anecdotes and stories of such mothers who protected their daughters from death. The use of data, theory, and anecdotes made her presentation enriching and helped end the insightful discussion with an invoking thought. The session ended with a group discussion between the four eminent speakers of today’s session on the meaning of Feminism, Gender and Representation and the necessity of Gender-sensitive laws and policies followed by an insightful Q&A round with the participants.
Day 2 | December 23, 2022
The second day of the panel discussion started with Ms Nayna Agarwal inviting Prof Vibhuti Patel to start the session with her opening remarks. Prof Patel began by recapping the first day’s discussion with the panellists. She then outlines the presentations to be done on the second day by the panellists- ‘Law and Reality of Women, Girls Facing Sexual and Domestic Violence’ by Adv Audrey D’Mello; ‘Role of Health Workers in Assisting Survivors of Sexual Violence’ by Dr Amar Jesani; and ‘Reproductive Rights of Women in India’ by Prof Vibhuti Patel.
She started her presentation on the ‘Women’s Rights Movement and Health Concerns Taken Up by the Women’s Rights Movements‘ (Reproductive Rights of Women in India). It was with the women’s rights movements that reproductive rights were equated with human rights. She then asks a primary question that is- What are reproductive rights? As the ability to reproduce is what sets women apart from men, the concerns surrounding the control over their own reproduction, freedom to choose when, where, and how to reproduce and safe abortion comes into the picture. All these issues were taken up by the women’s health movement which started in the early 1970s around the world and evolved into multi-faceted campaigns influencing health policies.
Next, she discusses reproductive control where she explains what it means and how families as well as government institutions always have an upper hand when it comes to reproductive control. Patriarchal control and no reproductive expression outside marriage are the societal norms that also play a great role in reproductive control over women’s bodies; these issues were also brought forth by these movements. Reproductive freedom is essential for women to play active roles in decision-making at micro and macro levels. These movements helped in reclaiming women’s control over their own fertility and opened venues for autonomy and decision-making in other aspects of life. Talking about reproductive control over women in India, she shared how girls dropping out of school as soon as they start menstruating, child marriage and religious and cultural taboos preventing women to use contraceptives.
Infertility viewed as a curse was discussed as some of the problems that they face due to limited or no control over their own body and reproduction. She mentions that in recent years institutions and society have started hearing their concerns and legislation like the Rights of Persons with Disabilities Act, 2016 is helping to protect their rights. She also talked about the difference between ‘population control’ and ‘birth control’ and how the difference between the two manifests itself between women’s overall health and their reproductive role. Next, she discusses India’s Women’s Health Movement. Problems like myths around menstruation, contraception, cultural and religious taboos regarding menstruation, pregnancy, childbirth, and over-medicalization of pregnancy for higher-class women were taken up. She also talks about hazardous contraceptives and the havoc that these can create in a woman’s body.
Women’s movement also campaigned for increasing male responsibility for contraception as condoms are cheaper, reliable, and have no side effects. Vasectomy is simpler and has fewer complications than tubectomy; another reproductive health hazard that women face is abortion. More than half of the abortions that take place in the country are unsafe. Medical Termination of Pregnancy Act, 1971 (MTPA) provides for this issue. While the movement fought for the right to safe abortion, it has also spread awareness and caution with respect to the dangers associated with repeated abortions. She discussed new reproductive technologies and the four types of functions they perform- Assisted Reproduction, Contraceptive Technologies, Prenatal Diagnosis and Gene Technologies.
Then she talks about the challenges of these new technologies. For instance, pre-natal sex determination is being used for female foeticide and against the unborn child who is not going to be born ‘normal’; they use In-Vitro Fertilization (IVF) to produce sons. Thus technologies need to be criticized through gendered and moral lenses. Next, she took up the subject of the conditions of healthcare workers at the bottom of the healthcare system. An example of ASHA workers was taken who are not treated as workers despite being burdened with numerous responsibilities. They don’t get minimum wages but only honorariums.
Adv Audrey D’Mello‘s presentation was on ‘Law and Reality of Women and Girls facing Sexual and Domestic Violence in India’. She discusses the rise of the autonomous women’s movement with the ‘Mathura Rape Case’. Criminal Law (Amendment) Act of 1980- better known as the new rape law was one of the major victories toward women’s rights reform. The minimum punishment for rape was also introduced in 1983. After 1980, major reforms were seen family courts were set up and domestic violence was seen as a grave offence. With the best laws in hand, the statistics still show that cases of domestic violence haven’t decreased. The laws and schemes that are provided by the State are not on par with the expectations of the victims. She gave an example of the victims of Domestic Violence and the research that Majilis Legal Centre did with respect to the victims and shelter homes for them.
Most of the women rejected the idea of staying in shelter homes and rather live in the house with domestic violence. The reasons given were that they are treated as prisoners in these shelter homes as they are not allowed to leave, use mobiles or meet children; these conditions stop them from leaving their husbands’ houses. Delay in family courts adds to the stress for the victim. Misuse of laws by women was another subject that she touched upon where she mentions how if a victim comes under the definition of ‘good victim’ then it’s the ‘use’ of laws. However, if the victim doesn’t come under the definition of a ‘good victim’, the victim is ‘misusing’ the laws. She also mentioned that 90% of rape cases are of children and in 15% of these cases, the perpetrators are close family or relatives. She made a connection between sexual violence and domestic violence as both of these are happening in the home space.
It’s basically domestic violence layered with sexual violence and everything is kept secret within a family. Adv D’Mello started discussing sexual violence. She discussed the prior 2011 rape case of a 4-year-old child by the watchman of the school and how the single mother of the child was accused of wrong accusations as she wants money from the school. The school was protecting the watchman and hired the best criminal lawyer to defend him. Police, instead of filing an FIR, brought the mother and child to school and in a way frightened them by asking various things. It was only after the medical examination of the child, the FIR was lodged because the doctor called them to do so. Talking about the secrecy in which the criminal courts suppose to function and how there’s no space for victims to know what is actually happening because the case is between the accused and the State.
Guidelines of the Supreme Court with respect to the protection of the dignity of the victim were not followed in the lower court. The accused was convicted in the case after one and a half years because of the POCSO Act in 2012. With the Nirbhaya case came the Nirbhaya fund: one of the investments made from the funds was cameras in buses. But only 2% of sexual offences happen in public spaces and the majority take place in private areas; another investment was done in street lights. The next thing done by the government was setting up a ‘one-stop centre’. The purpose of the centre was to provide counsellors, police and medical officer and legal aid officer to address any issues of women. ‘Compensation to the Victims of Rape Scheme’ was also brought so that sexual violence by family members became all the more difficult to prove because when the victim is financially dependent on the perpetrator, she may choose or be asked to not say anything.
Next, she talks about mandatory reporting which is applicable to every citizen if anyone knows about any sexual abuse; it could be a crime against a citizen if he/she fails to report it. But because of this mandate reporting has been increased and cases are coming out. Her key takeaway was to support women. People don’t need law degrees to come into the field and provide support. Anyone can do that. Dr Amar Jesani’s presentation was on ‘Role of Health workers in Assisting Survivors of Sexual Assault’. He started by mentioning that mandatory reporting is something that doctors are protesting against. It’s difficult to choose whether mandatory reporting shall or shall not be there. He also talked about a case where a minor girl came with her grandmother to abort her child. The doctor did the procedure and inserted Copper-T without her permission. Human Rights Lawyer in Ethics Committee outcried against the doctors’ actions saying that it was a statutory rape as she is a minor.
So in these types of cases, Dr Jesani commented, it makes it difficult to understand the consent of minors in sexual relationships, especially when the girl herself is not ready to complain. This also makes the agency of a victim complicated as to whether the reporting can be done without the minor’s consent. In those cases where a person comes to know about the sexual assault of a minor, what can be done is that the person can tell the victim that if she tells her/him that she/he will report the case if the victim affirms the offence committed against her. Mandatory reporting might give a short-term solution but in long term, it’s unable to provide a situation where the victim can come forward herself to report the case, which needs to be resolved. He then starts with his presentation by mentioning that all survivors who report to the police are brought to doctors and nurses to examine them. Those who do not go to the police also come to the health care system to get treated for their injuries, etc.
Once a sexual assault is reported to the doctor, the doctor is not only examining the patient but also doing forensic work. He then discussed the importance of medical evidence in sexual assault. Police or courts may rely on forensic and medical examination to prove the assault. However, the same won’t be established on their own. It can only be used as corroborative evidence of the victim’s complaint. So there’s a misconception that medical or forensic examination will provide clinching evidence of rape. A badly done examination might play a negative role and could revictimize the victim. Talking about forensic medicine in India, Dr Jesani mentioned that it’s dominated by law and jurisprudence rather than science taking the forefront. This absence of upskilling could lead to the wrong examination which could provide wrong evidence in the court too. Therefore, there’s a need to make forensic science forward and keep the law at the backbench.
The initiative to improve forensic science was taken up by Dr Lalitha D’Souza, by designing a protocol for forensic examination and evidence collection of survivors, in 1998. She streamlined the forensic examination of survivors with the ethics and human rights of the survivor. In case of non-availability of support for correct examination, a kit was prepared and made available. Oriented the doctors to protect the rights of survivors and not lay in hands of the accused, in the court. He further discusses the role of forensic doctors toward patients. They should treat the victim as their patient, should protect the victim’s human rights, provide treatment and counselling, and should get consent from the victim while taking forensic evidence, doing the medical examination and sending it to the police. He also mentions the duty of doctors towards the police and the justice system. Lastly, he talked about British Medical Association Guidelines and the responsibility that doctors have towards their patients who have been sexually assaulted and the justice system.
Day 3 | December 24, 2022
The third day of the panel discussion started with Ms Agarwal inviting Prof Vibhuti Patel to start the session with her opening remarks and welcoming other panellists- Adv Prof Saumya Uma, Adv Dr Albertina Almeida, and Adv Mrunalini Deshmukh. Giving an overview of the third day’s presentations focussing on Matrimonial Remedies in India, she mentioned that various international organizations and groups including G-20 are focussing their discussion on gender issues, and sexual and conjugal rights of women. Adv. Prof. Saumya Uma started her presentation on ‘Restitution of Conjugal Rights as a Matrimonial Remedy in India’. She explained, the term ‘Restitution of Conjugal Rights’ (RCR) is a legal concept and matrimonial remedy under which a spouse could be directed to co-habit with the other spouse, in recognition of the right to marital conjugality, even if the spouse is unwilling to do so.
It also includes the right to companionship and consortium which is a camouflaged way of saying the right to unobstructed access to the spouse’s body for sexual intercourse against the spouse’s will. Then she explained the colonial origin of RCR. In medieval England, remedies for divorce didn’t exist as marriage was considered indissoluble. The only remedy was the annulment of marriage and that too was provided on limited grounds, many times leading to remarriage. Desertion as a ground for annulment didn’t exist and the remedy for desertion was RCR. She also mentioned two doctrines that lead to the dependency of women on their spouses and making them the property of their husbands- the Doctrine of One Flesh and the Doctrine of Coverture.
While the former doctrine states the notional concept that after marriage, the woman’s flesh combines with the husband’s and it created the loss of individuality, autonomy, existence, and basic rights of the women. The latter doctrine says the legal status and rights of a married woman be subsumed under the husband’s protection and authority. There was no legal intervention if the husband assaulted his wife. This led to complete impunity for physical, sexual, and psychological violence by the husbands. Married women’s rights were determined by this doctrine. The absence of divorce and these doctrines lead to extreme subordination status of married women
Then she talked about disobedience to the RCR decree and its legal history in England. Prior to 1813, disobedience used to lead to ex-communication from the Church. Then in 1813, Ecclesiastical Courts Act came which replaced ex-communication with imprisonment of up to 6 months. In 1984, Matrimonial Causes Act came, removing the provision of imprisonment with ‘statutory desertion’ and giving the remedy of judicial separation to the aggrieved spouse. Later on, disobedience was treated as desertion and in 1970, Matrimonial Causes and Property Act abolished RCR. This led to the discussion of RCR in colonial India. RCR came to be imposed upon Hindu women for the first time through the case of Bhikaji v. Rukhmabai, although traditional Hindu Law had no such provision. In this case, Rukhmabai had a child marriage and she refused to cohabit with her husband; their marriage wasn’t consummated.
The husband filed for RCR to force her to cohabit so that consummation can happen without her will. She declared that she would rather go to prison than live with him. Judges, in this case, refused to pass the decree of RCR stating that it’s an outdated medieval Christian remedy and has no foundation under Hindu Law. The husband appealed this judgment and it was reversed by Chief Justice Sir Charles Sergeant by emphasizing the violation of conjugal duty and issued a decree of RCR. Rukhmabai then appealed to Queen Victoria and she signed a special decree dissolving the marriage and preventing Rukhmabai’s imprisonment. Various discourses came up after this judgment. Hindu nationalists applauded Rukhmabai’s refusal stating it to be a perfect example of Hinduism and a threat to Hindu families due to English education. Indian social reformers looked into child marriage as a barbaric Hindu custom that lacks consent and women’s matrimonial rights.
British colonialists took a stand of relying on translations of Hindu and Muslim religious texts interpreted according to English law. Later, RCR came to be applied in Hindu, Muslim, and Christian matrimonial cases. RCR in post-independent India was discussed. Courts started considering Hindu marriage as sacrosanct which needs to be preserved to save marriage institutions. The subjugation of women’s rights came as a consequence of the preservation of the Hindu Joint family. In Hindu Marriage Act, 1955 (HMA), both spouses had the remedy of RCR. This remedy was taken to other personal laws as well. She then mentions the gender neutrality of these provisions whose usage is gendered. It has been sparingly used by wives due to lower socio-economic status, social stigma, and financial dependence on their husbands. These provisions are used majorly by husbands to save their violent marriages.
She mentioned the case of Gurdev Kaur v. Sarwan Singh in which motives for the husband’s petition for RCR have been explained- for securing the resignation of the wife from the job, for defeating the maintenance claim of the wife, and for preparing the ground for judicial separation. She also mentioned the case of Ojaswa Pathak v. Union of India, which constitutionally challenges RCR. In this case, the petitioners have argued that though the legal framework is a neutral but disproportionate burden is imposed on women which makes it violative of Articles 14 and 15. It is obsolete English law that treats women as chattel, steeped in stereotypes, and thus violative of Article 15(1). It’s violative of the right to privacy, individual autonomy, and dignity of individuals. The case is currently pending before the Supreme Court.
Adv Dr Albertina Almeida began her presentation on ‘Locating the Discourse on Restitution of Conjugal Rights In Debate of Uniform Civil Code’. She mentions that RCR has originally been the concept of Ecclesiastical/Christian religions. However, it later took place in the personal laws of other religions. Law has been used as a tool for ‘Moral Hygiene’ in the context of marriage. Especially in early 19th century England, Moral Hygiene was infused with religious beliefs because of the temptation to sexual immorality (Biblical quote). Feminist Biblical interpretation of the Biblical quote is that it’s the responsibility of the lover to give love. The quote doesn’t give someone the right to demand it. There has to be mutuality of relationship and authority. This shows that different religions have given various notions over this subject and it’s all about the interpretation of these notions which will make it secular or restrictive. In the present case, the Victorian moral discourse around hygiene converged with upper-caste Hindu Morality, where certain bodies were othered in the name of impurity.
In terms of the Uniform Civil Code (UCC), it will become difficult to realize the morality of which religion should be taken and whether the morality of UCC will not be against religious moralities. In cases where specific religion prevails in a society, it becomes important to discuss that majoritarian views shouldn’t be governing regulation over secular society. Manusmriti states- neither by sale nor by desertion is the wife released from the husband. This was only applied to women and not men. Therefore it found acceptability amongst the majority of Parliamentarians. Some did raise against this saying that this is a form of legalized rape (Mr Khardekar). In Muslim law, it is said that if either of the spouses is not fulfilling his/her duties towards the other after coming into contract, the court may decree restitution of conjugal rights, and may put either party on terms of securing the other the enjoyment of his or her rights (Muslim Law by Tayabji).
In Holy Quran, husbands have the right to retain their wives with kindness, with equal consideration. However, if the husband has not paid the dower money, he cannot ask for the restitution of conjugal rights. While in terms of the Iranian Civil Code, it is mentioned that it’s un-Islamic to provide unequal conjugal rights to husbands as Quran makes no distinction on the basis of gender. Secular Legislation- Special Marriage Act, 1954 also provides for equal conjugal rights for both spouses. Next, she discussed Goa’s laws on matrimony which are different from the personal laws governing other parts of the country. She mentioned the provisions of the Portuguese Civil Code of 1867 which states that a husband can apply to restore the wife through the court when the wife abandons him (Article 1470). The exception here is that woman can apply for judicial custody as an act in preparation for a suit for divorce and this custody of women shall be granted to the honest family, preference being given to the relatives of the wife (Article 1467).
She further makes the point that it doesn’t matter whether we have UCC or personal laws because, in the case of these provisions, these are uniformly applicable to all religions but still problematic. So UCC alone won’t solve the issue concerning RCR. Adv Mrunalini Deshmukh started her presentation on ‘Conjugal Rights of Women with Special emphasis Property Inheritance and Alimony’. Did women have the right to own property before the laws came into being? We belong to a patriarchal society with having patriarchal mindset. Earlier the concept of money was alien to women and her maintenance was done by her family and husband, after the marriage. There was a dependency on males. In such circumstances, there weren’t laws to provide for the same. In 1937, the Women’s Right to Property Act was the first law that came into being for the property rights of women.
Under this law, women had the right to hold property but the Act had its own limitations. In the 1950s when the codification of personal laws was taking place, there were a lot of debates in parliaments and committees, that why should there be a Hindu Code. After HMA was implemented, the question- of what rights women get when they get married, was answered by the provisions which provided for maintenance, alimony, and other reliefs in case the husband is not taking care of the wife. Interim maintenance (Section 24 of HMA), Alimony (Section 25 of HMA) provided under the Act, including other provisions are gender neutral, in the sense that if the wife is earning then she’d be liable to pay maintenance to her non-working husband. She mentions that equality can be between equals and these laws and Constitution were drafted when women were not on par with the position of men, in society. So the laws will have to provide for the empowerment of women first, only then can the provisions of equality could effectively be applied (Example Article 15(3)).
Hindu Adoption and Maintenance Act of 1956 provided for women to live away from their husbands without forfeiting the right to get maintenance. In situations where a woman is suffering but for some reason can’t divorce her husband, this law provides the remedy for that. Section 23 of this Act provides the criteria to decide the amount of maintenance. Code of Criminal Procedure, 1973 also talks provides maintenance to the wives under Section 125. She also mentioned the Shah Bano case where the court came to the rescue of an old woman due to the atrocities that she was put into. The court ruled that a man will have to provide for his wife during the marriage and after divorce if she cannot sustain herself financially on her own. This stance was a deviation from Shariat Law. So the empowerment of women has been realized by the executive as well through judicial activism. Closing the 3-Day training session, Prof. Patel gave her concluding remarks and thanked all the eminent panellists. The training program ended with a vote of thanks by Ms Nayna Agarwal, IMPRI.
Acknowledgement: Eva Chauhan and Ishina Das are research interns at IMPRI.
A list of reading resources relevant to the course is given below:
|1||A Womb of One’s Own: Privacy and Reproductive Rights||Arijeet Ghosh, Nitika Khaitan||2017||Economic and Political Weekly|
|2||Reproductive rights in the Indian Context||Saheli, Delhi||2000||Saheli|
|3||Individualizing Justice through Multiculturalism: The Liberals’ Dilemma||DL Coleman||1996||Columbia Law Review|
|4||Testing Chastity, Evidencing Rape||Durba Mitra, Mrinal Satish||2014||Economic and Political Weekly|
|5||Sexual assault: the role of the examining doctor||Dr. Lalitha D’Souza||1998||CEHAT (Centre for Enquiry into Health and Allied Themes)|
|6||Wedlock or Wed-Lockup? A Case for Abolishing Restitution of Conjugal Rights in India||Prof (Dr) Saumya Uma||2021||International Journal of Law, Policy and the Family|
|7||1 Restitution of conjugal rights and the dissenting female body: The Rukhmabai Case||Kanika Sharma||2020||Routledge|
|8||From a Pati-Parmeshawar or a Lord to a Partner: How the Conservative Patriarchal Family Ideology Operates and Is Challenged in the Courts||Shalu Nigam||2022||SSRN|
|9||Indra Sarma vs V.K.V. Sarma||Supreme Court of India Judgement||2013||Supreme Court of India Judgement|
|10||D. Velusamy vs D. Patchaiammal||Supreme Court of India Judgement||2010||Supreme Court of India Judgement|
|11||‘It is a hard decision’: a qualitative study of perinatal intimate partner violence disclosure||Malikeh Amel Barez et al.||2022||Reproductive Health Journal|
|12||Centring sexual and reproductive health and justice in the global COVID-19 response||Kelli Stidham Hall et al.||2020||The Lancet|
|13||Sexual health, human rights and the law||Human Reproduction Program (HRP)||2015||WHO|
|14||Reproductive rights are human rights: A handbook for national human rights institutions||2014||Office of the High Commissioner for Human Rights (OHCHR)|
|15||“Yes” to Abortion but “No” to Sexual Rights: The Paradoxical Reality of Married Women in Rural Tamil Nadu, India||Ravindran, Sundari TK; Balasubramaniam P||2004||Rural Health Matters|
|16||Can India transition from informal abortion provision to safe and formal services?||Iyengar K, Iyengar SD and Danielsson KG||2016||The Lancet|
|17||Protection of Women from Domestic Violence||Flavia Agnes and Audrey D’mello||2015||Economic and Political Weekly|
|18||The Making of a High Profile Rape Trial||Flavia Agnes and Audrey D’mello||2014||Economic and Political Weekly|
|19||Governing conjugality: Social hygiene and the doctrine of restitution of conjugal rights in England and India in the nineteenth century||Laura Lammasniem, Kanika Sharma||2021||Australian Feminist Law Journal|
|20||Islamization of Restitution of Conjugal Rights by Federal Shariat Court of Pakistan: A Critique||Shahbaz Ahmad Cheema||2009||SSRN|
|21||Notes from Punjab: Making sense of missing daughters||Bijayalaxmi Nanda||2019||Global Journal for Research Analysis, Volume-8, Issue-10|
|22||Sex Slective Abortion: A Syncretic Feminist Approach||Bijayalaxmi Nanda||2014||Mainstream Weekly|
|23||A Long Battle for the Girl Child||Vibhuti Patel||2011||Economic and Political Weekly, Vol. 46, Issue No. 21|
|24||Breaking up: Your guide to getting divorced||Mrunalini Deshmukh||2012||Penguin|
|25||Q&A with Mrunalini Deshmukh | India’s Changing Family Law System||Mrunalini Deshmukh||2012||Mint|
Youtube Videos For Reproductive And Conjural Rights of Women In India
Day 1: https://youtu.be/X9TY4cn3wzA
Day 2: https://youtu.be/NvFFwMyQBw4
Day 3: https://youtu.be/Jz8sYzb3pnU