WOMEN AND LAW

Position of Women in Vedic Period: EDUCATION

In Vedic period, the education of women was considered very important. Education was
equally open for boys and girls. Girls studied Vedas and fine arts. Some of the renowned
female scholars of vedic period are Maitraye, Gargi, Viswavara among the others.

Property rights: Unmarried daughter had share in their father’s property. In the absence
of any son, daughter had full legal rights in the property of her father. Wife and husband
had joint ownership rights of the property.

Marriage: There was fair amount of choice in selection of partners and dowry was
recognised. Monogamy appears to have been accepted. Marriage age in Rigveda is mentioned
around 16 or 17.

Divorce, Remarriage: Divorce and remarriage of women were allowed under special
circumstances. Ancient Hindu scriptures does not mention the prevalence of sati system
and the widow was not forced to undergo merciless practices.

Women in Medieval Period

Indian women’s position further deteriorated during the medieval period characterised
mainly by child marriage, ban on remarriage of widows, Sati system and Jauhar system. The
Muslim conquest in Indian subcontinent brought with it the Purdah system. Their education
and training came to a sudden halt. Devoid of any status, they came to be treated as
chattels.

Sati Pratha: Sati is a Hindu practice, now largely historical, in which a widow sacrifices
herself by sitting atop her deceased husband's funeral pyre.

Jauhar: Jauhar was a Hindu practice of mass self-immolation by women, in the Indian
subcontinent, to avoid capture, enslavement and rape by an invading army, when facing
certain defeat during a war.

Modern Period: Woman Law

ConstitutionalProvisions and Gender Justice
The Preamble of the Constitution clearly states that equality should be given to all citizens
in terms of status and opportunity. The framers of the constitution aimed at ensuring
equality of status and opportunity through the Preamble. Equality is the touchstone of
Indian Constitution.
Article-14 specifically states that within the territory of India, the state shall not deny
to any person equality of law or equal protection of law.
Article-15(1) prohibits gender discrimination. However, certain fundamental rights contain
specific provisions to protect the rights of women.
Article-15(3) positively discriminates in favour of women and permits the state to make
special provisions for them.
Article-16 talk about equality of opportunity in case of public employment. Equal
employment opportunity means equal access to jobs and conditions of work. It also contains
in itself the essence of equal evaluation of performance.

1
Constitution of India contains various provisions relating to equality between men and
women and there are certain cases where women have been given special importance.

Joseph Shine v. Union of India

A writ petition was filed under Article 32 by Joseph Shine challenging the constitutionality
of Section 497 of IPC read with Section 198 of Cr. P.C., being violative of Article 14, 15 and
21. This was at first a PIL filed against adultery. The petitioner claimed the provision for
adultery to be arbitrary and discriminatory on the basis of gender. The petitioner claimed
that such a law demolishes the dignity of a woman. Adultery law provides that man to be
punished in case of adultery but no action is suggested for the women. Hence, it made the
gender neutral. As per section 497, there is no legal provision that a woman can file a
complaint of adultery against her husband. According to section 497, if the husband gives
his consent for such an act, then such act is no more considered as a crime. Therefore,
women are treated as an object under adultery law.

Judgement in Joseph Shine v. Union of India

Section 497 disposes women from her autonomy, dignity and privacy. It is considered as
the encroachment on her right to life and personal liberty by accepting the notion of
marriage which overthrows the true equality. Equality is overthrow by adopting the
sanctions of penal code to a gender-based approach to the relationship of man and woman.
Sexual autonomy falls within the area of personal liberty under article 21 of Constitution
of India. It is very much important in a relationship the expectations that one has from the
another. When both the spouses respect each other with equality and dignity then only the
respect for sexual autonomy is established. The judgment focuses on the fact that women
should not be considered as the property of their husband or father anymore. They have
equal status in the society and should be given every opportunity to put their stance
forward.

TRIPLE Talaq case

“This form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken
capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to
save it.” They also held that the practice is violating Article 14 of the constitution as the
Muslim man holds the ultimate power in this regard whereas the woman has no say in it.

Provisions relating to Women in Fundamental Rights

The Constitution of India guarantees all such rights to women which are given to men.
Women thus enjoy the Right to Equality, the Right to freedom, the Right against
exploitation, the Right to freedom of religion, Cultural and Educational Rights and the Right
to Constitutional remedies.

Article 14 — Equality before Law: Article 14 guarantees to every person the right to
equality before the law or the equal protection of the laws within the territory of India.
It was rightly decided in the landmark case of Nargesh Meerza vs Air India that a woman
shall not be denied employment merely on the ground that she is a woman. This leads to
violation of Article-14 of the Constitution.

Article 15 — Prohibition of discrimination on grounds of sex: Article 15 concretises and

enlarges the scope of Article 14. Article 15 (1) prohibits the State from discrimination on
the grounds of religion, race, caste, sex, place of birth or any of them.
2
In the case of C.B Muthamma vs Union of India, a writ petition was filed before the Apex
Court which challenged Rule-8(2) of the Indian Foreign Service (Conduct and Discipline)
Rules,1961. In this rule it was stated that an unmarried woman member before getting
married must take the permission of the Government and even after marriage she might be
asked to resign the office any time if it is found that her family life is affecting her work
efficiency. The Apex Court in this case declared the rules relating to seniority and
promotion in Indian Foreign Service to be unconstitutional and violative of Article-15 of the
Indian Constitution. Along with this, the court held that the rules contain essence of
masculinity in them, as if an attempt has been made to dominate the weaker sex.

In the case of Dattatraya v. State of Bombay, the Bombay High Court held that the
State can establish educational institutions for women only.

Article 16 — Equality of opportunity in matters of public employment: Article 16 is an

instance of the application of the general rule of equality before law laid down in Article 14
and of the prohibition of discrimination in Article 15(1) with respect to the opportunity for
employment or appointment to any office under the State.

Recently, in Air India Cabin Crew Association v. Yeshaswinee Merchant, the Supreme
Court has held that the twin Articles 15 and 16 prohibit a discriminatory treatment but not
preferential or special treatment of women, which is a positive measure in their favour. The
Constitution does not prohibit the employer to consider sex while making the employment
decisions where this is done pursuant to a properly or legally chartered affirmative action
plan.

Further, in Vijay Lakshmi v. Punjab University, it has been observed that Rules 5 and 8 of
the Punjab University Calendar, Vol. III providing for appointment of a lady principal in a
women’s or a lady teacher therein cannot be held to be violative of either Article 14 or
Article 16 of the Constitution, because the classification is reasonable and it has a nexus
with the object sought to be achieved. In addition, the State Government is empowered to
make such special provisions under Article 15(3) of the Constitution. This power is not
restricted in any manner by Article 16. In this way, the Indian Judiciary has played a
positive role in preserving the rights of women in the society

Article 21 — Protection of life and personal liberty. Article 21 contains provisions for
protection of life and personal liberty of persons. It states: “No person shall be deprived
of his life or personal liberty except according to procedure established by law.” Right to
life is recognized as a basic human right.

Article 23 — Right against exploitation and prohibition of traffic in human beings for
centuries women have been humiliated, exploited, tortured and harassed in all walks of life
— physically, mentally and sexually. To safeguard and protect women against exploitation,
Article 23 (1) of the Constitution of India prohibits traffic in human beings and begar and
other similar forms of forced labour. “Traffic in human beings” means selling and buying
human beings as slaves and also includes immoral traffic in women and children for immoral
or other purposes.

3
Provisions relating to women in DPSP
Part IV of the Constitution from Articles, 36 to 51 contains what may be described as the
active obligation of the State. The Directive Principles of State Policy are fundamental in
the governance of the country and it shall be the duty of the state of apply these principles
in making laws on to secure a social order in which social, economic and political justice shall
inform all the institutions of national life.

These Directives Principles are ideals which are based on the concept of “Welfare State”
and they fix certain goals; social and economic; for immediate attainment by the Union and
State Governments while formulating a policy or enacting a law.

According to Article 39(a), the State shall direct its policy towards securing that the
citizens men and women equally, have the right to an adequate means of livelihood. Under
Article 39 (d), the State shall direct its policy towards securing equal pay for equal work
for both men and women. This Article draws its support from Articles 14 and 16 and its
main objective is the building of a welfare society and an equalitarian social order in the
Indian Union. To give effect to this Article, the Parliament has enacted the Equal
Remuneration Act, 1976 which provides for payment of equal remuneration to men and
women workers and prevents discrimination on the ground of sex. Further Article 39 (e) is
aimed at protecting the health and strength of workers, both men and women. A very
important and useful provision for women‟s welfare and well-being is incorporated under
Article 42 of the Constitution. It imposes an obligation upon the State to make provisions
for securing just and humane conditions of work and for maternity relief.

Provisions relating to Women in Fundamental Duties

Article 51-A under Part IV-A of the Constitution of India lays down certain Fundamental
Duties upon every citizen of India, which were added by the Forty-Second Amendment of
the Constitution in 1976. The latter part of Clause (e) of Article 51-A, which relates to
women, gives a mandate and imposes a duty on Indian citizens “to renounce practices
derogatory to the dignity of women”. The duties under Article 51-A are obligatory on
citizens, but it should be invoked by the Courts while deciding cases and also should be
observed by the State while making statutes and executing laws.

Personal Laws and Women: After Independence

Introduction: India is a country with rich culture and heritage. It is the abode to many
religions and philosophies. Secularism has been one of the features of Indian life from the
time immemorial. Thus, in respect of personal matters like marriage, divorce, succession,
adoption and maintenance, different personal laws are followed, depending on the religion
of the person. This gave rise to different marriage laws, succession laws and divorce laws
applicable to different religions like Hinduism, Islam and Christianity. Different religions
confer different rights on the women as regards these personal matters, in the absence of
a Uniform Civil Code in India.

Hindu Women and Marriage

Position before the Hindu Marriage Act, 1955
Prior to 1955, that is before the enactment of the Hindu Marriage Act, 1955, the Hindu
marriage was considered purely to be a sacrament, by all the schools. There were eight
forms of marriage among Hindus, out of which four were approved forms and the rest

4
unapproved. The approved forms of marriage were Brahma, Daiva, Arsha and Prajapathya.
The unapproved marriages were Asura, Gandharva, Rakshasa and Paisacha. In due course of
time only two forms remained in practice viz., Brahma' in the approved form and ‘Asura' in
the unapproved form. In the former type, the woman was given as a gift by her father to
his son-in-law i.e., the husband of the woman. In the latter type, it was considered as a sale
by the father to the son-in-law. Polygamy was an accepted practice and there was no limit
on the number of women, a Hindu man could marry. Widow remarriage was prohibited till
the reformers like Raja Rammohan Rai made some bold attempts to facilitate them. Child
marriages were rampant, in spite of sustained efforts by certain reformers.

Position under the Act of 1955

The Hindu Marriage Act, 1955 does not specifically provide for any form of marriage. It
made the marriage more consensual and secular than religious. The Hindu Marriage Act,
1955 amended and codified the Hindu law relating to marriage. The Act underwent several
amendments by the Hindu Marriage Amendment Acts of 1956 and 1964, the Marriage Laws
Amendment Act of 1976, the Child Marriage Restraint Act of 1978 and the Prohibition of
Child Marriages Act 2006. The Hindu Marriage Act has made elaborate provisions as to the
conditions for a Hindu marriage, ceremonies, registration, legitimacy of children, nullity of
marriage and divorce etc.

Conditions for a Hindu Marriage: - Section 5 of the Act lays down the conditions for a
valid Hindu Marriage. They are
i. Monogamy or single status
ii. Sound mind
iii. Minimum age of 18 years for the girl (bride) and 21 years for the boy (bride groom)
iv. The parties are not within prohibited degrees of relationship; and
v. The parties are not Sapindas to each other.

Thus, it could be seen that the Act of 1955 has introduced radical changes in the marriage
laws of Hindus. Section 5 has the effect of abolishing the prohibition on widow remarriage,
child marriage and polygamy in one stroke. The Hindu woman therefore stands on the same
footing as the man in almost all these matters.

Ceremonies: There is no discrimination between the bride and bride groom with regard to
the ceremonies, in view of Section 7 of the Act.
Registration: The provisions of Section 8 dealing with registration of a Hindu marriage are
equally applicable to the bride and bride groom. There is nothing in the Act to suggest that
registration of a Hindu marriage is essential and that failure to do so renders the marriage
void.

The Supreme Court of India issued directions in Seema v. Ashwani Kumar, AIR 2006 that
the marriages of all persons who are citizens of India belonging to various religions should
be registered. Registration of marriages has a great evidentiary value. The Supreme Court
has, thus directed the States and central government to take concrete steps in this
direction.

Restitution of Conjugal Rights: This is a remedy provided to a spouse aggrieved by the

desertion of the other spouse, without any reasonable cause. Section 9 of the Act
specifically provides that when either the husband or the wife has withdrawn from the

5
society of the other without reasonable excuse, the aggrieved party may initiate legal
proceedings for decree of restitution of conjugal rights.

Judicial Separation: Section 10 of the Act declares the right of either spouse to a
marriage for obtaining judicial separation. This provision is a statutory recognition of the
right to judicial separation among Hindu spouses. The grounds for judicial separation for
both the husband a wife are the same as the grounds for divorce contained in Section and
13 (1) of the Act.

Divorce: Section 13 of the Act provides several grounds for obtaining divorce by either
party to the marriage whether solemnized before or after the commencement of the Act.
The grounds common to both the Husband and wife are mentioned in Section 13 (1). They
are:
a. Other spouse living in adultery:
b. Cruelty of the other spouse;
c. Desertion by the other spouse:
d. Conversion by the other spouse to other religion:
e. Unsound mind of the other spouse
f. Other spouse suffering from venereal diseases;
g. Renunciation of the world by the other spouse; and
h. Presumption of death of the other spouse.

Two more grounds common to both the husband and wife were added by an amendment
made in 1964, in the form of Section 13 (1-A). These grounds could be invoked by either
the Husband or the wife for the purpose of obtaining divorce. They are–
i. Non-resumption of cohabitation as between the parties to the marriage for a period
of one year or upwards after the passing of a decree for judicial separation; and
ii. No restitution of conjugal rights as between the parties for a period of one year
upwards, after passing of decree for restitution of conjugal rights.

Wife's Special Grounds for Divorce: There are four grounds mentioned in Section 13 (2)
which are available only to a wife, for the purpose of obtaining divorce which were added
by Amendment Act, 1976.

Divorce by Mutual Consent: Section 13-B of the Act, added in 1976 provides for divorce
by mutual consent. Thus, when there is total break-down of the matrimonial relationship
and the spouses are living separately for a period of one year or more on the mutual
agreement between the parties, divorce can be obtained from a court of law.

This provision is a progressive law as it treats the Hindu wife. on equal footing with the
Hindu husband. The Supreme Court has recognized that when the marriage is dead, both
emotionally and practically, the best course of action for the spouses would be to obtain
divorce by mutual consent.

Muslim Women and Marriage

Muslim marriage is regarded as a contract between a Muslim man and woman which has for
its object procreation and legitimization of children.
Capacity of a Muslim to marry: Marriage of every Muslim, whether male or female, is
permissible in law provided the following conditions are satisfied:
6
 (a) Sound mind; and
(b) Puberty (Bulugh)

As regards puberty, it is to be understood as a physical phenomenon to be ascertained by

evidence and in the absence of evidence to the contrary, it is generally presumed that a
person who has completed the fifteenth year of age, has attained puberty. Personal Laws
maintain that the earliest age of puberty for a boy is, generally twelve years and for a girl
it is nine years. Thus, even a minor Muslim girl also can marry if the consent of a “marriage-
guardian" is obtained for that purpose.

As regards those persons (both male and female) who are neither minors nor insane, the
rules of Muslim law are as follows.
(1) Under all schools of Muslim law, such a boy can freely marry, personally and without
anybody being marriage guardian.
(2) Under the Hanafi and Ithna Ashari laws (but not under Shafei and Ismaili School),
such a girl can freely marry personally and without the consent of anyone else.

As regards those persons, male and female who are incompetent to contract their own
marriage due to insanity or minority, the Muslim law lays down as under. Under none of the
schools of Muslim law, can an insane person (male or female) or a minor contract a marriage
without the consent and intervention of his or her “marriage-guardian". Under Shafei law:
A girl, though not a minor or insane, cannot contract her first marriage without the consent
of her marriage-guardian; but where she is marrying for the second time, this rule does not
apply. The same principle applies to Ismaili Law.

Marriage-Guardianship
The authority of a person to contract the marriage of another who is incompetent to
contract his or own marriage is called "marriage-guardianship" (Waliyat-e nikah). The person
having such authority is called marriage. guardian (Wali-e-nikah). Only those persons who
can contract their own marriage can act as marriage guardian for another person. There is
no uniformity as to the persons who can act as marriage-guardians.

Different schools of Muslim law follow different practices in this regard. E.g.: In Hanafi
law, there are 18 relatives of the bride/bride groom who can act as “marriage-guardians"
they include father, father's father, father's father’s father, brother (first full, then
consanguineous) etc., one after the other. At the Shafei, Ithna Ashari, and Ismaili laws,
the entitlement to marriage- guardianship is extremely restricted. Only the father or the
father's father of a minor can act as the marriage guardian.

Legal Requirements of marriage

As a Muslim marriage partakes the character of "Civil Contract", there is always a proposal
(Ijab) by either party and acceptance (Qubul) by the other party. If the parties to the
intending marriage are not competent to contract their own marriage, then the proposal
and acceptance can be made by their respective marriage guardians. The proposal and
acceptance can be made either personally or through a representative. Most of the Muslim
schools like Hanafi and Shafei insist on the presence of witnesses (Gawah) when the
contract takes place.

7
Christian Women and Marriage
Every marriage between Indian Christians may be solemnized provided the bride is 18 years
of age and the bride groom 21 years. Polygamy is prohibited among the Christians. For the
contract of marriage among Christians, the free and intelligent consent of the parties is
indispensable. The Christian law of marriage is codified in the form of Indian Christian
Marriage Act, 1872 and Indian Divorce Act, 1869. There are number of enactments in India
that deal with the Christian marriages and matrimonial causes including the Indian Christian
Marriage Act, 1872, the Marriage’s Validation Act, 1892, The Cochin Christian Civil
Marriage Act, 1905, The Indian Matrimonial Causes (War Marriages) Act, 1948,

The Indian Christian Marriage Act, 1872

It is the main legislation that deals with a Christian marriage in India. This Act lays down
various provisions dealing with the marriage registrar, and place of marriage registration
of marriages and the grant of marriage certificates etc. A perusal of various legislations on
the topic makes it amply clear that a Christian marriage confers the right to maintenance
during marriage, to restitution of conjugal rights, to judicial separation and divorce.
Registration of such marriage is compulsory. A marriage between the Indian Christians may
be solemnized without the preliminary procedural formalities of notice etc., by any person
licensed to solemnize such marriages. The Christian woman enjoys equal rights in her marital
life along with her husband. There is no polygamy permitted among the Christians. Similarly,
Christians cannot marry each other, if they are within the prohibited degrees of
relationships. The Prohibition of Child Marriages Act 2006 which repealed the Child
Marriage Restraint Act, 1929 is applicable to the Christian also. It is clear that a Christian
wife enjoys co-equal rights with Hindu and Muslim wife even though her status and rights
are not governed by the same law.

Parsi Women and Marriage

Parsi religion accepts no converts. The Parsis are a strictly monogamous and endogamous
group. The Parsi Marriage is also regarded as a contract through a religious ceremony of
Ashirvad which is necessary for its validity. Ashirvad literally means "blessings". It has to
be by a priest in the presence of two Parsi witnesses other than such priest. Parsi Marriage
and Divorce Act at present in force was passed in 1936. The essential conditions for a valid
Parsi marriage are that
 Both the parties must be Parsis
 The contracting parties should not be related to each other in any of the degrees of
consanguinity or affinity
 The parties to it must be majors (21 years for boys, and 18 years for girls}"
 Each party must be single (No bigamy is permitted)
 Every marriage contracted under this Act shall, immediately on the solemnization
thereof, be certified by the officiating priest duly signed by the said priest, the
contracting parties and two witnesses present at the marriage.

All the other matrimonial remedies are available to the Parsi spouses like nullity of marriage,
dissolution of marriage", divorces, Divorce by mutual consent" judicial separation,
restitution of conjugal rights", Alimony pendente lite - permanent alimony and maintenance,
and custody of children

8
Muslim Women- Dissolution of Marriage
Divorce by the Muslim wife:
Originally, a Muslim wife had no independent right of divorce. She could not divorce her
husband whenever she liked, as her husband could do. Under Muslim law prevailing now,
divorce by wife is possible only in the following situations:
 Where the husband delegates to the wife the right of Talaq (Talaq-e-Tafweez).
(consent of husband)
 Where she is a party to divorce by mutual consent (Khula and Mubarat). (consent of
husband)
 Where she wants to dissolve the marriage under the Dissolution of Muslim Marriages
Act, 1939. (court)

Delegated Divorce: under Muslim Law

A Muslim husband has unrestricted right to divorce his wife whenever he likes. This right
is so absolute that he may exercise it either himself or may delegate his right to another
person. In other words, instead of pronouncing the Talaq himself he may give his right of
divorce to anyone else, including his own wife. Even the presence of wife at the time of
pronouncement of Talaq is not necessary. A Talaq pronounced in the absence of wife is
lawful and effective. Divorce by such other person, who acts as agent of the husband under
his authority, is called Talaq-e- Tafweez or delegated divorce. In the delegated divorce
the Talaq pronounced by that other person is as effective as if it was made by the husband
himself.

Divorce by mutual consent

Under Muslim law, a divorce may take place also by mutual consent of the husband and wife.
It may take place any time whenever the husband and wife feel that it is impossible for
them to live with mutual love and affection as is desired by God. A divorce by mutual consent
of the parties is a unique feature of Muslim law. Under Hindu Law there was no such
provision before 1976. At present Section 13-B of the Hindu Marriage Act, 1955 provides
for the same. There are two forms of divorce by mutual consent: (i) Khula and (ii) Mubarat.

Khula-it means divorce by the wife with the consent of her husband on payment of
something to him. Before Islam, the wife had no right to take any action for the dissolution
of her marriage. But in Islam, she is permitted to ask her husband to release her after
taking some compensation.
Mubarat: Mubarat is also a divorce by mutual consent of the husband and wife. In Khula
the wife alone is desirous of separation and makes the offer, whereas in Mubarat both the
parties are equally willing to dissolve the marriage. Therefore, in Mubarat the offer for
separation may come either from husband or from wife to be accepted by the other.

Judicial Divorce
Judicial divorce means a divorce by the order of a court of law, granted on a number of
grounds. Before 1939, a Muslim wife could seek her divorce by a judicial decree only on the
ground of (1) false charge of adultery by the husband against her (Lian), or (2) impotency
of the husband, and on no other grounds.

The Dissolution of Muslim Marriages Act, 1939: Act may be considered as a landmark in
respect of matrimonial relief to a Muslim wife. The wife's right of divorce, which was denied
to her was restored to her under the Act.
9
Grounds for Judicial Divorce by Wife-Section 2 of the Dissolution of Muslim Marriage
Act, 1939, provides that a woman married under Muslim law shall be entitled to obtain a
decree for the dissolution of her marriage on any one or more of the grounds enumerated
therein. The specified grounds are as under:
a. The Husband is missing for Four Years
b. Husband's failure to maintain the wife for Two Years.
c. Imprisonment of the husband for Seven Years
d. Husband's failure to perform marital obligations for Three Years
e. Husband's impotency
f. Husband's insanity, leprosy, veneral disease
g. Option of puberty by wife
h. cruelty by husband
i. habitual assault on wife
j. any other ground which is recognised as valid under the act.

Triple Talaq by Muslim Husband:

Triple Talaq is the practice under which a Muslim man can divorce his wife by simply uttering
Talaq three times. It is prevalent among India's Muslim community majority of whom follow
the Hanafi Islamic school of law.
Talaq-ul-Sunnat of the divorce sanctioned by the Prophet is sub-divided into: (i) Talaq-e-
Ahsan (ii) Talaq Hasan (iii) Talaq-e-Biddat
1. Talaq-e-Ahsan: Under this form, once the husband pronounces Talaq, there has to be
a three-month Iddat period to factor in three menstrual cycles of the woman. This time
is meant for reconciliation and arbitration. During this period, if any kind cohabitation
occurs, the Talaq is considered to have been revoked.
2. Talaq-e-Hasan (Proper): In this form too, there is a provision for revocation. The
words of Talaq are to be pronounced three times in the successive periods after
menstrual cycles. The husband has to make a single declaration of Talaq and then wait
for another menstrual cycle to pronounce another declaration. The first and second
pronouncements may be revoked by the husband. If he does so, either expressly or by
resuming conjugal relations, the words of Talaq become ineffective as if no Talaq was
made at all. But if no revocation is made after the first or second declaration then lastly
the husband is to make the third pronouncement in the third period the Talaq becomes
irrevocable and the marriage dissolves
3. Talaq-e-Blddat: Allows men to pronounce Talaq thrice at a time. It may be in one
sitting, sometimes scrawled in a written Talaqnama, or even by phone or text message.
Thereafter, even if the man himself perceives his decision to have been hasty in
hindsight, the divorce remains irrevocable. It is a disapproved mode of divorce.

Recently, the Supreme Court has declared the Talaq-e-Biddat popularly known as Instant
Talaq, as unconstitutional. In Shayara Bano us. Union of India, the Supreme Court set
aside the practice of Talaq-e-biddat - triple Talaq.

Christian Women and Divorce

The Indian Divorce Act, 1869 regulates the law relating to the divorce of persons
professing the Christian religion and also the other matrimonial clauses. Section 10 of the
act provides the grounds on which a husband or a wife may petition for dissolution of

10
marriage. It has prescribed a solitary ground for dissolution of marriage on a petition by a
husband, that is adultery of the wife. It is not necessary that there should be direct
evidence of adultery before marriage can be dissolved, for direct evidence is rarely
available. Association coupled with opportunity and evidence of illicit affection or
familiarity may be sufficient for the court.

Grounds of Dissolution of Marriage:

In case of any marriage solemnized, whether before or after the commencement of the
Indian Divorce (Amendment) Act, 2001, Section 10(1) of the Act sets forth the grounds on
which a Christian marriage may be dissolved. A wife or husband may present a petition for
dissolution of the marriage to the District Court or to the High Court on any one of the
following grounds that the respondent-
i. has committed adultery
ii. has ceased to be Christian by conversion to another religion; or
iii. has been incurably of unsound mind for a continuous period of not less than two
years immediately preceding the presentation of the petition;
iv. has, for a period of not less than two years immediately preceding the
presentation of the petition, been suffering from venereal disease in a
communicable form; or
v. has not been heard of as being alive for a period of seven years or more by those
persons who would naturally have heard of the respondent if the respondent had
been alive; or
vi. has willfully refused to consummate the marriage and the marriage has not
therefore been consummated; or
vii. has failed to comply with a decree for restitution of conjugal rights for a period
of two years or upwards after the passing of the decree against the respondent;
or
viii. has deserted the petitioner for at least two years immediately preceding the
presentation of the petition; or
ix. has treated the petitioner with such cruelty as to cause a reasonable
apprehension in the mind of the petitioner that it would be harmful or injurious
for the petitioner to live with the respondent.

Divorce by Mutual consent:

Till the 2001 amendment made to the Indian Divorce Act, a man and woman married under
the Christian Marriage Act were not entitled to a degree of divorce by mutual consent.
However, Section 10-A has been inserted by an amendment to the Act in 2001 to deal with
this deficiency. This provision states that a petition for dissolution of marriage may be
presented to the District Court by both the parties to a marriage together, whether such
marriage was solemnized before or after the commencement of the Indian Divorce
(Amendment) Act, 2001, on the ground that they have been living separately for a period
of two years or more, that they have not been able to live together and they have mutually
agreed that the marriage should be dissolved. This provision is similar to the remedy of
divorce by mutual consent available to the Hindu spouses, to the Muslim Spouses in the form
of Khula, to spouses who got married under the Special Marriage Act, 1954' and to the
Parsis.

Parsi Women and Divorce

11
The Parsi Marriage and Divorce Act, 1936
Under Section 31 of the Act, if a husband or wife shall have been continually absent from
his or her wife or husband for the space of seven years, and shall not have been heard of
as being alive within that time by those persons who would have naturally heard of him or
her, had he or she been alive, the marriage of such husband or wife may, at the instance of
either party thereto, be dissolved.

Grounds for divorce- According to Section 32 of the Act, any married person may sue for
divorce on any one or more of the following grounds, namely -
a) that the marriage has not been consummated within one year after its solemnization
owing to the willful refusal of the defendant to consummate it;
b) that the defendant at the time of the marriage was of unsound mind and has been
habitually so up to the date of the suit.
But divorce shall not be granted on this ground, unless the plaintiff (1) was ignorant of the
fact at the time of the marriage and (2) has filed the suit within three years from the date
of the marriage,
(bb) that the defendant has been incurably of unsound mind for a period of two years or
upwards immediately preceding the filing of the suit or has been suffering continuously or
intermittently from mental disorder of such kind and to such an extent that the plaintiff
cannot reasonably be expected to live with the defendant.

(c) that the defendant was, at the time of marriage, pregnant by some person other
than the plaintiff.
(d) that the defendant has since the marriage committed adultery or fornication or
bigamy or rape or an unnatural offence. But divorce shall not be granted on this
ground if the suit has been filed more than two years after the plaintiff came to
know of the fact.

(dd)that the defendant has since the solemnization of the marriage treated the plaintiff
with cruelty or has behaved in such a way as to render it in the judgement of the Court
compel improper to the plaintiff to live with the defendant.
(e) that the defendant has since the marriage voluntarily caused grievous hurt to the
plaintiff or has infected the plaintiff with venereal disease or, where the defendant
is the husband, has compelled the wife to submit herself to prostitution.
(f) that the defendant is undergoing a sentence of imprisonment for seven years or
more for an offence as defined in the Indian Penal Code.
(g) that the defendant has deserted the plaintiff for at least two years.
(h) that an order has been passed against the defendant by a Magistrate awarding
separate maintenance to the plaintiff, and the parties have not had marital
intercourse for one year or more since such decree or order.
i) that the defendant has ceased to be a Parsi by conversion to another religion. But divorce
shall not be granted on this ground if the suit has been filed more than two years after the
plaintiff came to know of the fact.

Vishaka Vs State of Rajasthan

Bhanwari Devi, a social worker from Rajasthan, was brutally gang-raped by five men for
preventing a child marriage. Determined to seek justice, she decided to go to court. In a
shocking decision, the trial court acquitted all five accused. Vishaka, a Group for Women’s
12
Education and Research, took up the cause of Bhanwari Devi. It joined forces with four
other women’s organisations, and filed a petition before the Supreme Court of India on the
issue of sexual harassment at the workplace. On August 13, 1997, the Supreme Court
commissioned the Vishaka guidelines that defined sexual harassment and put the onus on
the employers to provide a safe working environment for women.

Laxmi Vs Union of India

In 2006, Laxmi, an acid attack victim, filed a petition seeking measures to regulate the sale
of acid and provide adequate compensation to the victim. Taking cognizance of the number
of cases relating to acid attacks against women on the rise, the Supreme Court imposed
stringent regulations on the sale of acid in 2013. The ruling banned over the counter sale
of acid. Dealers can sell the acid only if the buyer provides a valid identity proof and states
the need for the purchase. It is mandatory for the dealer to submit the details of the sale
within three days to the police. It also made it illegal to sell acid to a person below 18 years

13