Every woman has the right to live in dignity, free of fear, coercion, violence and discrimination. From the still prevalent dowry harassment to gender pay gaps, Indian women need the law to support them through all of the atrocities. Be it the allegations of sexual harassment by journalist Tarun Tejpal or the deaths of the victims of dowry harassment Ayesha Banu and Rashika Jain, it is vital that women know how to safeguard their rights.
On National Legal Services Day, TC46 shares vital rights and laws for women with expert inputs from contributors Shruti Swaika, a lawyer by profession and Principal Associate at Fox & Mandal and Lawyer Tanya Appachu.
Overarching Rights Of Working Women Under Indian Laws
Over the years, several enactments have been passed for the welfare of the working people and the protection of Indian employee rights. Some of these enactments carve out special provisions for the women workforce. Here are the laws every woman needs to know and familiarise herself with to improve and protect her position in the workforce:
The Maternity Benefit Amendment Act, 2017
A maternity benefit Act stipulates that every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit, which is the amount payable to her at the daily wage rate for the period of her actual absence.
This Act was enacted on 12th December 1961, to regulate the employment of women in certain establishments for certain periods before and after childbirth, and to provide for maternity benefits and certain other benefits.
The Sexual Harassment of Women At Workplace (Prevention, Prohibition, & Redressal) Act, 2013 (“SHA”)
India finally enacted its law on the prevention of sexual harassment against female employees in the workplace in 2013. The statute was enacted almost 16 years after the landmark judgment of the Supreme Court of India, in the matter of Vishaka and others v. State of Rajasthan (“Vishaka Judgment”).
The Vishaka Judgment laid down guidelines making it mandatory for every employer to provide a mechanism to redress grievances pertaining to sexual harassment at work and enforce the right to gender equality of working women (“Guidelines”).
The Complainant has the option to file a written complaint to ICC/LCC. Either she can demand an enquiry into the matter or choose to conciliate. In the case of the former, the Complaints Committee has to conduct a detailed investigation within the workplace and declare their judgement along with the recommendations to the employer. The Complaints Committee has the discretion to suggest the penalties after having heard both parties. Any aggrieved Party also has a right to appeal against the order of the ICC/LCC for further relief under this Act.
The Factories Act, 1948 (“Factories Act”):
The Factories Act aims at protecting workers employed in factories from unfair exploitation by their employers. The Factories Act also has exclusive provisions for women workers.
- No woman worker shall be allowed to work in a factory except between 6 a.m. and 7 p.m. The State Governments may by notification vary the limits as set out in this point, but in no circumstance will women employees be allowed to work between 10 p.m. and 5 a.m.
On 1st December, President Pranab Mukherjee gave his assent to the Maharashtra Factories (Amendment) Bill, 2015, wherein, amongst other amendments, it is allowing women to work in factories in night shifts. This amendment also makes it mandatory for factory management to ensure the security of women working night shifts.
- The shift timing of a woman worker cannot be changed except after a weekly holiday or any other holiday. Hence, women employees are entitled to get at least a 24-hour notice for their shift timing change.
The Factories Act also stipulates that employers employ 30 or more women workers to provide for cheches for children of the women workers, aged 6 years and below.
The Equal Remuneration Act, 1976: Article 39
Our Constitution directs that States shall, in particular, have policies towards securing equal pay for equal work for both men and women. Under the Equal Remuneration Act:
- Employers shall pay equal remuneration to their male and female employees who are carrying out the same or similar work.
- Employers cannot discriminate between men and women while recruiting unless there is a restriction under the law to employ women in certain industries (Landmark case: Air India v Nargesh Meerza, Air 1981 SC 1929)
Apart from the laws discussed above, there are other laws for the welfare and safeguarding of employees.
Additionally, women employees must also be aware of various enactments which provide for social security for employees such as:
- Employee’s Provident Fund & Miscellaneous Provisions Act, 1952
- Employee’s State Insurance Act, 1948
- Payment of Gratuity Act, 1972
- Payment of Bonus Act, 1965
In India, the constitutionally guaranteed equality for women is often contradictory to the harsh societal reality of the land and its cultural norms.
In 2013, India adopted its first legislation specifically addressing the issue of workplace sexual harassment; the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) enacted by the Ministry of Women and Child Development, India. Workplace sexual harassment is a form of gender discrimination which violates a woman’s fundamental right to equality and right to life, guaranteed under Articles 14, 15 and 21 of the Constitution of India.
The POSH Act had been enacted with the objective of preventing and protecting women against workplace sexual harassment (which include the creation of a hostile work environment) and addressing complaints of sexual harassment.
Maternity Benefit Act
2017 witnessed the bold amendment to the Maternity Benefit Act, 1961 (“Maternity Act”). Here are the specifics:
- The Maternity Amendment extends paid maternity leave for women employees with less than two surviving children, from the original twelve (12) weeks to twenty-six (26) weeks.
- A maximum of eight (8) weeks can be taken before the expected delivery date and the remaining after childbirth.
- Women expecting their third child were also provided with the right to take twelve(12) weeks of paid maternity leave—six (6) weeks before childbirth and six after.
- The Maternity Amendment also provided for mothers adopting a child below three months of age, or “commissioning mothers” to take twelve (12) weeks of maternity leave from the date of receiving the child.
- The Maternity Amendment enables mothers to work from home after completing twenty-six (26) weeks of leave subject to their work profiles and the employer’s consent.
- The Maternity Amendment also mandates establishments employing 50 or more employees to have a creche which is required to have prescribed facilities and amenities. Women employees have a right to visit the crèche four times a day, including during their rest intervals.
Company Law provides for the reservation of women Directors on boards of all public companies. All public companies must have at least one woman director. Although most companies fulfilled this requirement by having puppet women directors, it has still given women a foot in the door as much as listed companies make an effort to not have simply a puppet director. It has also helped women follow how companies function at the board level, even though they are still seldom part of any real decision-making process.
These are tiny steps, but steps nonetheless. The Indian Institute of Corporate Affairs also takes active steps now in skilling women so they can have a greater contribution at the Board level.
Hindu Succession Act
A major breakthrough for women in joint family business also happened in 2016 when the Delhi High Court conclusively decided that women can become karta in a HUF. Although the Hindu Succession Act, 1955 was amended in 2005 to give daughters the same right as sons, as a practice it was still the eldest son who would be the karta of the HUF.
It was in the judgement of Sujata Sharma v. Manu Gupta that the Delhi High Court laid down that since both daughters and sons have equal rights as coparceners, it is the eldest child who becomes the karta and not the eldest son. This is a landmark judgement, still not known well enough, which has the potential to give immense power to the hands of women.
The most recent judgement where this time, the Supreme Court has upheld the position of women, is in the case of Vineeta Sharma v. Rakesh Sharma, decided on 11th August 2020. Cementing the fact that daughters and sons are equal, despite when they were born, whether they are married or not, and whether their father passed away prior to the 2005 amendment or not, the Supreme Court, quoting a 1996 judgement, stated that “A son is a son until he gets a wife. A daughter is a daughter throughout her life”.
Needless to say, this judgement does not bestow greater rights on the daughter than on the son but enshrines her equal rights.
Divorce Laws In India
Laws relating to divorce fall in the realm of personal laws in India. These laws are different depending on one’s religion. Before anyone cries out foul and cites secularism here, it is important to understand that laws religious scriptures have had a huge contribution in our personal laws and even today, a great amount of Muslim law is not codified and recourse is made to religious scriptures in order to determine rights of individuals.
Indeed, our Constitution, in Article 12 includes ‘custom’ within the definition of law. Accordingly, we have the Hindu Marriage Act, 1955 which governs the rights of Hindu women in case of divorce, which is the present topic. In addition to the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act”), we also have the Code of Criminal Procedure, 1973, which gives some additional rights to women.
To begin a conversation on divorce, one must start with the grounds for the same.
The Hindu Marriage Act, 1955 lays down the grounds on which one can seek divorce. These are:
- When the other spouse has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or,
- has, after the solemnization of the marriage, treated the petitioner with cruelty; or
- has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
- has ceased to be a Hindu by conversion to another religion; or
- has been incurable of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent; or
- has been suffering from venereal disease in a communicable form; or
- has renounced the world by entering any religious order; or
- 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 it, had that party been alive; or
- that there has been no 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 in a proceeding to which they were parties; or
- that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties; or
- that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or
- that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
In addition to all the above, a husband and wife can also seek divorce by mutual consent on the ground of irretrievable breakdown of the marriage.
Irrespective of the grounds on which divorce is sought, the next question that comes up is that of maintenance and alimony. The thumb rule here is that the wife is to be granted such amount of maintenance as would allow her to enjoy the same standard of living as she was accustomed to while living with her husband. Therefore, what is seen by the Courts is not the wealth of the husband, nor that of his family, nor his personal income, nor that of the family. While all these factors do play a role in the process, what is finally looked at by the Court is the standard of living the wife was accustomed to during the subsistence of marriage. While Courts have a high degree of autonomy in deciding the amounts to be allowed, this is the rule adopted in most cases. Accordingly, the Courts may choose to consider the earning capacity of the wife herself while coming to this amount.
At this stage, it is relevant to note that maintenance or alimony is of two types.
One is maintenance pendente lite, i.e. the maintenance amount payable during the pendency of the divorce proceeding and the second is the permanent alimony, i.e. the amount payable upon the decree of divorce. Maintenance pendente lite is available both under Hindu personal laws and under the Code of Criminal Procedure. This may be either by way of a one-time payment or a periodical payment. The Quantum of maintenance depends on several grounds. The Delhi High Court, in a 2016 decision in the case of Manpreet Singh Bhatia v. Sumita Bhatia laid down some of these grounds which include:
- Status of the parties;
- Reasonable wants of the claimant;
- The independent income and property of the claimant;
- The number of persons, the non-applicant has to maintain;
- The amount should aid the applicant to live a similar lifestyle as he/she enjoyed in the matrimonial home;
- Non-applicant’s liabilities, if any;
- Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant;
- Payment capacity of the non-applicant;
- Some guesswork is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed;
- The non-applicant defray the cost of litigation.
- The amount awarded u/s 125 Cr.PC is adjustable against the amount awarded u/24 of the Act.
Dowry Prohibition Act
The Dowry Prohibition Act, 1961, in Section 2, defines dowry as follows:
“2. Definition of “dowry” – In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly –
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person,
at or before or any time after the marriage in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Explanation I. – [deleted]
Explanation II.—The expression “valuable security” has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860).”
In view of the definition of “Dowry” under Section 2 of the Dowry Prohibition Act, the mere demand thereof would not be an offence under Section 4 of that Act. It should either be given or agreed to be given at or before or after the marriage in connection with the marriage. Although in common parlance one very often uses the term “dowry demand” in the cases where the husband or his relations demand valuable security from the parents and other relations of the wife after the marriage, yet this will not amount to demand dowry under the Act in view of the definition of dowry contained in Section 2 of the Act. Demand for dowry under the Act and in the legal sense will mean the demand for dowry only when it refers to the property of valuable security given or agreed to be given at or before or after the marriage. The alleged offence as made out in the complaint petition may attract the penal provision as contained in Section 498-A of the Penal Code. The Parliament in its wisdom appended the explanation as to what “cruelty” means and has constructed sub-clause (b) of Section 498-A in the following words, “harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is an account of failure by her or any person related to her to meet such demand.” If the cases of this nature are to be brought within the ambit of Section 4 of the Act, then the word “dowry” under Section 2 of the Act shall have to be redefined in the light of sub-clause (b) under Section 498-A of the Penal Code.
The Indian Penal Code. Section 304-B, which was inserted in 1986, provides as follows:
304-B. Dowry Death
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.
Explanation — For the purpose of this sub-section, “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
The Equal Remuneration Act, 1976
Until 2019, the ERA was the only legislation, in addition to the provisions of the Constitution of India, which prohibited discrimination in recruitment on grounds of sex. The statement of objects and reasons of the ERA stated that Article 39 of the Constitution envisages that the State shall direct its policy, among other things, towards securing that there is equal pay for equal work for both men and women.
The ERA was, however, repealed by the Code on Wages, 2019.
The Act provided for payment of equal remuneration to men and women workers for the same work or work of similar nature. Some of the relevant provisions of the ERA are as follows:
- The expression “same work or work of a similar nature” under the ERA was defined as work in respect of which the skill, effort and responsibility required are the same, when performed under similar working conditions, by a man or a woman and the differences, if any, between the skill, effort and responsibility required of a man and those required of a woman are not of practical importance in relation to the terms and conditions of employment.
- Section 5 prohibited discrimination while recruiting men and women workers for the same work or work of a similar nature, or in any condition of service subsequent to recruitment such as promotions, training or transfer.
- Section 4 of the ERA stated that the remuneration of any worker should not be at rates less favourable than those at which remuneration is paid to workers of the opposite sex.
- Section 15 expressly provided that it does not apply to cases affecting the terms and conditions of a woman’s employment in complying with the requirements of any law giving special treatment to women or to any special treatment accorded to women in connection with:
- The birth or expected birth of a child, or
- The terms and conditions relating to retirement, marriage or death or to any provision made in connection with the retirement, marriage or death
The Code On Wages, 2019
It has already been mentioned hereinabove that unlike its predecessor being the ERA, the Code on Wages (“the Code”) prohibits discrimination on the grounds of all genders. While the Code has refrained from specifying the genders in relation to the provision prohibiting discrimination in matters relating to wages, the Code also contains provisions promoting the recruitment of women. Some of the relevant provisions of the Code are as follows:
- Section 3(1) of the Code provides that there shall be no discrimination in an establishment or any unit thereof among employees on the ground of gender in matters relating to wages by the same employer, in respect of the same work or work of a similar nature done by any employee.
- Section 3(2)(ii) of the Code states that no employer shall make any discrimination on the ground of sex while recruiting any employee for the same work or work of similar nature and in the conditions of employment, except where the employment of women in such work is prohibited or restricted by or under any law for the time being in force.
- The Code under Section 42 lays down provisions for a Central Advisory Board and a State Advisory Board.
- It states that the Central Advisory Board shall from time to time advise the Central Government on, inter alia, providing increasing employment opportunities for women and the extent to which women may be employed in such establishments or employments as the Central Government may, by notification, specify on this behalf.
- A similar provision has been made for State Advisory Boards which are to be constituted by every State under Sections 42(4)(b) and 42(4)(c). The Code states that In tendering its advice in the matters specified in clause (b) or clause (c) of sub-section (4) of section 42, the State Advisory Board shall have regard to the number of women employed in the concerned establishment, or employment, the nature of work, hours of work, suitability of women for employment, as the case may be, the need for providing increasing employment opportunities for women, including part-time employment, and such other relevant factors as the Board may think fit.