Appointment of Sole Arbitrator And Execution of Arbitration
Decrees in the Execution Courts Analyzing in the Context of
“M/s.Hedge Finance Private Limited v. Bijish Joseph”

(By Muhammed Saud T., Advocate, Palakkad)
E-mail : saudkarakkad01@gmail.com   Mob.: 7559972963

Arbitration has emerged as a significant alternative dispute resolution (ADR) method,
recognized for its efficiency, cost-effectiveness, and dedication to party autonomy
(Redfern & Hunter, 2015)₁. The Arbitration and Conciliation Act, 1996₂  (hereinafter referred to as ‘the Act ‘) in India establishes a legal framework that conforms to international arbitration standards, particularly the UNCITRAL Model Law on International Commercial Arbitration, 1985₃. The Act is designed to minimize judicial intervention, ensuring swift dispute resolution, a principle reaffirmed in multiple rulings, including Centrotrade Minerals & Metal Inc. v. Hindustan Copper Ltd. (2017)₄

A sole arbitrator is chosen based on Section 11 of the Arbitration and Conciliation Act, 1996 (Ministry of Law and Justice, 1996), which is an important part of arbitration. Section 11 delineates the procedure for appointing arbitrators, underscoring the principle of party autonomy in the selection process. Subsections (2) and (3) permit parties to concur on a method for the appointment of arbitrators. Section 11(4) lets a party ask the High Court (or the Supreme Court in international commercial arbitrations) to choose an arbitrator if there isn’t an agreement or adherence to the set procedure. As demonstrated in Duro Felguera, S.A. v. Gangavaram Port Ltd. (2017)₅, the Supreme Court has made it clear that its main job right now is to decide if an arbitration agreement is legal. Recent changes to the Act, especially those that deal with arbitrators’ independence and impartiality, have had a huge impact on how Section 11 is interpreted and used. As shown in M/S.Hedge Finance Private Limited v. Bijish Joseph (2022), arbitrators’ qualifications are now closely looked at, and one-sided appointments are not as legal as they used to be. The Section 11 enables parties to collaboratively determine the appointment of an arbitrator. In the absence of such an agreement, Section 11(6) permits either party to petition the High Court (or the Supreme Court in international commercial arbitrations) for appointment. The judiciary’s function in these appointments has undergone changing interpretations, especially on impartiality and equity. Important rulings like TRF Ltd. v. Energo Engineering Projects Ltd. (2017)₆ have made it clear that interested parties cannot make appointments on their own. This upholds the fairness standards set out in Section 12 and the Fifth and Seventh Schedules of the Act (as amended in 2015). Voestalpine Schienen GmbH v. Delhi Metro Rail Corporation Ltd. (2017)₇ underscored the importance of arbitrator independence, emphasizing the requirement for transparent disclosures to prevent conflicts of interest. In the case of Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd. (2020)₈, the Supreme Court expanded on this idea by saying that someone who isn’t allowed to be an arbitrator can’t also be the one to choose one.

The Arbitration and Conciliation Act of 1996, Section 36, makes arbitral awards the same as civil court decrees. This means that they can be enforced. Judicial examination has revealed conflicts between party autonomy and judicial involvement. Initially, submitting a challenge under Section 34 resulted in an automatic stay, hindering enforcement and diminishing the efficacy of arbitration. The 2015 Amendment got rid of this part of the law, making it the award debtor’s job to ask for a stay. This cut down on delays and made Indian arbitration more in line with international standards.

However, the involvement of judges can have both positive and negative effects. Execution courts frequently serve as arenas where award debtors manipulate procedural loopholes to delay enforcement, so challenging the effectiveness of arbitration as an autonomous procedure. The Kerala High Court’s decision in M/S.Hedge Finance Private Limited v. Bijish Joseph₉brings these issues to light and shows how judge’s power over execution processes is not always clear. Although courts guarantee equity, excessive interference threatens to compromise the finality and efficiency of arbitration. This case sets a very important precedent for how arbitration agreements can be enforced in India, showing the ongoing conflict between enforceability and judicial overreach.

M/s.Hedge Finance Pvt.v. Bijish Joseph(O.P.(C) No.1263 of 2022)₁₀involves a challenge
to an order by the additional district court(viii), Ernakulam, which held it lacked jurisdiction
to enforce an interim arbitral award obtained by M/s.Hedge finance private limited (“hedge finance”) against Bijish Joseph. The core issue revolves around the enforcea-bility of an interim award passed by a sole arbitrator unilaterally appointed by hedge finance, in light of amendments to the Arbitration and Conciliation Act, 1996₁₁, particularly regarding the arbitrator’s independence and impartiality .this case highlights significant concerns in domestic arbitration, specifically the illegitimacy of arbitrators appointed unilaterally under the revised Arbitration and Conciliation Act, 1996. This raise the concern that such appointments violate the standards of neutrality and impartiality established by the 2015 amendments, making both the appointment and the subsequent temporary award invalid.

The ruling underscores the essential duty of courts to examine the jurisdiction and qualifications of arbitrators when enforcing verdicts. It underscores that arbitration, despite its objective to diminish court oversight, cannot circumvent essential legal prerequisites like impartial arbitrator selections. Furthermore, the rule promotes procedural fairness by mandating the issuance of notices to respondents to maintain natural justice, especially when temporary relief is requested.

India’s arbitration framework is developing to minimize judicial involvement while guaranteeing the efficient enforcement of arbitral rulings. Recent Supreme Court decisions in 2024 underscore the need for restricted judicial action, according to international arbitration norms. In Avitel Post Studioz Limited & Ors. v. HSBC PI Holdings (Mauritius) Limited (April 2024)₁₂, the Supreme Court reaffirmed India’s support for arbitration by denying a challenge to a foreign arbitral decision. This demonstrates how crucial it is for courts to minimize interference in enforcement. In Vidya Drolia v. Durga Trading Corporation₁₃, the Court highlighted that judicial intervention in the appointment of arbitrators should be limited to instances when arbitration agreements are deemed unlawful.

In Delhi Metro Rail Corporation Ltd. v. Delhi Airport Metro Express Pvt. Ltd. (May 2024)₁₄
the Court used its “curative jurisdiction” to overturn a major arbitral award. This case illustrates how important it is to balance fairness with enforcement in rare cases. The Government of India’s proposed reforms intend to optimize arbitration and execution processes, thereby minimizing superfluous delays. The Delhi High Court’s decision in Honasa Consumer Limited v. RSM General Trading LLC ₁₅exemplifies judicial initiatives to safeguard the enforceability of awards. The establishment of specialized arbitration benches can improve uniformity and accelerate execution proceedings.

The Kerala High Court’s ruling inM/S.Hedge Finance Private Limited v. Bijish Joseph underscores the difficulties in implementing arbitral rulings, especially with judicial discretion in execution. Although courts guarantee procedural fairness, undue intervention may impede enforcement and undermine the goals of arbitration. Enhanced legislative frameworks, more stringent restrictions on execution challenges, and specialized arbitration tribunals can bolster India’s pro-arbitration position. Maintaining both enforcement and equity is crucial to ensure the continued effectiveness of arbitration as a conflict settlement method.

 

Foot Notes

1. Redfern, A., & Hunter, M. (2015). Law and practice of international commercial arbitration (6th ed.). Sweet & Maxwell.

2.Government of India (1996). Arbitration and Conciliation Act, 1996 (No. 26 of 1996). Ministry of Law and Justice.

3. UNCITRAL (2006). UNCITRAL Model Law on International Commercial Arbitration, 1985: with amendments as adopted in 2006. United Nations.

4. Centrotrade Minerals & Metal Inc. v. Hindustan Copper Ltd.((2017) 3 SCC 212 (India).

5. Duro Felguera, S.A. v. Gangavaram Port Ltd. (2017 (4) KLT OnLine 2080 (SC) = (2017) 9 SCC 729.

6. TRF Ltd. v. Energo Engineering Projects Ltd., (2017 (3) KLT OnLine 2134 (SC) = (2017) 8 SCC 377 (India).

7. Voestalpine Schienen GmbH v. Delhi Metro Rail Corporation Ltd., (2017 (1) KLT OnLine 2158 (SC) = (2017) 4 SCC 665 (India).

8.Perkins Eastman Architects DPC & Anr.v. HSCC (India) Ltd. (2019 (4) KLT OnLine 3231 (SC) = (2020) 20 SCC 760 (India).

9. Dias, C.S., J. (2022). M/S. Hedge Finance Private Limited v. Bijish Joseph, (2022 (6) KLT SN 44 (C.No.34) = 2022 (4) KLT OnLine 1098 = O.P.(C) No.1263 of 2022 (High Court of Kerala).

10.  High Court of Kerala. M/S. Hedge Finance Private Limited v. Bijish Joseph (2022 (6) KLT SN 44 (C.No.34) = 2022 (4) KLT OnLine 1098 = O.P.(C) No.1263 of 2022 (2022).

11. Ministry of Law and Justice. (2021). The Arbitration and Conciliation (Amendment) Act, 2021 (Act No.3 of 2021). Legislative Department, Government of India.

12. Avitel Post Studioz Limited & Ors. v. HSBC PI Holdings (Mauritius) Limited (2024 = 2024 KLT OnLine 2748 (SC)).

13.Vidya Drolia v. Durga Trading Corporation (2020 (2020 (6) KLT OnLine 1025 (SC)).

14. Delhi Metro Rail Corporation Ltd. v. Delhi Airport Metro Express Pvt. Ltd. (2024 (3) KLT SN 40               (C.No.21) SC = 2024 KLT OnLine 1338 (SC)).

15. Honasa Consumer Limited v. RSM General Trading LLC, 2024.

Section 12 of the Juvenile Justice Act:
A Pillar of Rehabilitation over Punishment

(By Suresh Vandannoor, Under Secretary, Law Department, Secretariat,  Thiruvananthapuram)
Mob.: 9495303488

The Juvenile Justice (Care and Protection of Children) Act, 2015, stands as a landmark legislation in India, emphasizing the care, protection, and rehabilitation of children in conflict with the law. Among its pivotal provisions, Section 12 is particularly significant, ensuring that juveniles are granted bail as a matter of right, irrespective of the offense’s nature. This provision embodies the Act’s overarching philosophy—rehabilitation over punishment.

Key Provisions of Section 12

Right to Bail: Section 12(1) unequivocally states that any child in conflict with the law is entitled to be released on bail, with or without surety. If bail is not granted, the child must be placed under the supervision of a probation officer or in the care of a fit person, rather than being detained in a prison-like setting.

Exceptions to Bail: Bail may be denied only under specific circumstances, such as:

If the release of the juvenile is likely to lead to further offenses.

If the child is at risk of moral, physical, or psychological harm.

If the child’s association with known criminals is deemed detrimental.

These exceptions serve as safeguards, reinforcing the Act’s focus on child welfare and rehabilitation.

Judicial Interpretations Reinforcing Section 12

Recent court rulings have consistently upheld the principle that juveniles must be granted bail under Section 12, reaffirming the non-punitive intent of the Juvenile Justice Act.

Supreme Court Judgment (August 2024): In the case Juvenile in Conflict with Law  v. The State of Rajasthan & Anr., the Supreme Court examined the denial of bail to a juvenile who had been in custody for over a year. The court highlighted that Section 12 of the JJ Act mandates the release of juveniles on bail unless specific conditions are met, such as the likelihood of association with criminals or exposure to harm. The court noted that psychological assessments showed the juvenile was not in a high-risk category, and no finding had been recorded justifying the denial of bail. The court concluded by overturning the earlier orders and granting bail, directing the juvenile’s release under supervision, with periodic reports to the Juvenile Justice Board.

Allahabad High Court (June 2024): In the case Juvenile-X v. State of U.P. & Anr. the Allahabad High Court ruled that the gravity of the offense is not a relevant consideration while dealing with a bail plea of a juvenile accused. This judgment reinforces the rehabili-tative approach of the Juvenile Justice Act, emphasizing that the focus should be on the child’s welfare rather than the severity of the alleged offense.

Implications for Juvenile Justice in India.

These judicial interpretations underscore a critical aspect of juvenile justice: the rehabilitative framework must take precedence over the severity of the offense. By granting juveniles the right to bail, the law ensures that children in conflict with the law are not subjected to the same treatment as adult criminals. This approach aligns with international conventions such as the United Nations Convention on the Rights of the Child (UNCRC), which advocates for the reformation and reintegration of juvenile offenders rather than punitive incarceration.

Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015, is a cornerstone provision that underscores India’s commitment to treating juveniles with compassion and care. Recent judicial pronouncements, including the Supreme Court’s 2024 judgment, have reinforced the provision’s intent, ensuring that children in conflict with the law are not unnecessarily detained but are instead given a fair chance at rehabilitation. By upholding the right to bail for juveniles, the Indian legal system continues to foster a child-centric approach, ensuring that young offenders are guided toward reformation rather than retribution.

Fundementals of Right to Sex

(By Sreejith Cherote, Advocate, High Court of Kerala

1. If we admit that the sum total of the corporeal act and cerebral feeling we defined as “SEX “is the name given to that bodily craving deliberately implanted in us by nature to promote procreation of specious, then we cannot ignore its purpose and impact both on our body and mind. The craving for sex is nothing but an instinctive push and pull of the hormones for a pleasant situation for a purpose. You are internally intoxicated from within to achieve the desired motive of the super software of the nature i.e., to multiply. Craving for sex, exist in both body and mind and they act corelative, as sexual desire is often ignited either by body or mind or by both. Physical acts like cuddling, kissing, sexual intercourse, inter connects with the sensory system in brain ignites to release happy hormones_¹ which enhances the physical experiences. Thought, emotions, fantasies, attraction, desire, mood, comfort level etc, influences the sexual experience. Sexual attractions originate in mind, it may also emerge due to emotional intimacy which in turn enhances the sexual experience. In the same way stress, anxiety, distractions, dejection, lack of communication etc. diminishes sexual involvement. Psychological stimulation leads Physiological responseslike increased heart rate, wheezing etc. In short sexual experience is a dynamic communion between physical and mental realms.

2. If sex is a carefully orchestrated symphony between mind and body, then what happens if former or the latter is disabled or is differently abled. In case of a persons with specially abled mental state, their body still produces required amount of sex hormones like testosterone _² or estrogen _³ creating a sexual desire. Due to the peculiar mental state, their mind is unable to recognize this instinctive call for a release, which creates an anonymous frustration for the person. Persons with disability does not necessarily lose their interest in sexual activity, but it’s really harder for them to seek and access physical intimacy due to their peculiar conditions.

3. The wave of sexual energy created by the sex hormones could have bought positives results, if the same could be channelized to achieve their normal results even for those suffering from cognitive defects. Persons, who are differently abled physically, lacks a level playing ground in the matter of sex, were they have equal opportunities regardless of their circumstances. Beside this there are people who needs assistance in experiencing sexual intimacy. Persons having physical incapacity in the form of restricted movements of limbs, who are unable to walk or who are unable to access their motor skills or persons who can only move or do their daily necessities only with the help of others, devoid of their incapacity may all have their internal physical functions and mental capacity as any other human being which means that they are capable of experiencing sexual activity. But the broad question is, are they in a position to access this natural and fundamental human, right?

4. Beside obvious pleasure, sex has also got therapeutic effect, which will even be more beneficial to people with mental or Physical disabilities. Now we are only focusing on bulldozing their direct or indirect urges originating from sex hormones and applying treatment methodologies for controlling or removing the same. The main emphasis is to address their distress, inappropriate behaviors, frustration etc caused by sex hormones by totally eradicating its functions which seems to be a violation of their basic natural right. In spite of the social refinement, we claim that we have, in making available all amenities and opportunities for mentally and physically disabled, we miserably lack in satisfying their essential and natural need which if precisely addressed would be more beneficial for them.

5. Pharmacological intervention for behavioral management in the form of Androgen_⁴ suppressants are prescribed to these differently abled persons to control and reduce their sex hormones. Which seems to be  a crude and negative approach to their problems. If we have devised many schemes to elevate the situation of the differently abled and for creating for them an equal opportunity in all walks of life, its culpable to ignore this essential need of theirs, which they themselves are unaware. Some countries like China_⁵ resort to vasectomy or sterilization to get rid of the sexual desires of differently abled persons which totally negates the humanitarian aspects of issue.

6. The right of differently abled person for a just solution for their unrealized volcanic passion, seems torpedoed by the colonial concept of morality. The taboo attached to the term “SEX” seems magnified out of proportion when considering their eligibility to experience the benefits of this natural pleasure, which is very fundamental as right to life itself. Our lawmakers are meticulously miniscule in considering all aspect of equal opportunity for the differently abled in all spheres, in tune with the international treaties and standards.

7. Coming to India, Article 21_⁶ of the Indian constitution contains the declaration as to right to life and personal liberty which has been interpreted by the courts from time to time, extending to include within Its umbrella all conceivable rights upholding human dignity _⁷.
Still no explicit remark recognizing “right to sex” especially for the differently abled is declared by the courts.

8. We in India have rules for the differently abled for their protection from cruelty and inhuman treatment, protection from abuse, violence and exploitation, protection and safety, provisions for Home and family, accessibility in voting, access to justice, provisions for guardianship and all other microscopic aspect of life. We even have positive legislation’s making it mandatory to create a separate entrance for the differently abled, for getting a building permit in a building having access to public_⁸, but we still miss to deliver the essential for them. We have myriad treaties and declarations including the United Nations convention on the rights of persons with disabilities (CRPD in short) etc., which are wholesome declaration touching all aspects of non-discrimination against differently abled people but without a direct recognition of the sexual rights of persons with disabilities. The emphasis given by CRPD on the right to privacy, freedom of expression etc though capable stretching to include within its ambit, the right to consensual sexual activities cannot be acknowledged as a specific assertion to that effect _⁹.

9. The situation of the differently abled in the matter of sexual rights is entirely different from others. Here the question of sexual entitlement is a right to be provided a biological need, just like any other social or cultural rights delivered to them by reason of their disability. If we can provide them with all other needs, there is no plausible explanation to shut our eyes to this essential need of theirs, simply because, it does not appeal to the moral and ethical standard historically set by some.

10. De-Sexualization is not an answer in redressing their grievance relating to sexual behavior. The right approach will be to allow them to experience the feel-good factor that the nature has given them. It seems that the world has given scant regard for the sexual necessity of disabled person and the same is not even an agenda for consideration about them.

11. Appreciatively while researching on the subject, it is seen that there are very few countries, which had been attentive in seeing sexual rights as an essential need of the differently abled. Netherlands pioneered in this move, which seems to be the first country which has devised a scheme to provide grants from the public fund to the differently abled people to have and experience sexual intimacy on periodic intervals. Country provides for benefits to its citizens with disabilities enabling them to spend the grant provided by the government in however way they like, including for sexual service 12 (twelve) times a year _¹⁰.
Apart from this legalizing prostitution and issuing license for sex workers, has given easy access to the differently abled for trained sexual assistance. Germany, Switzerland, Australia, Denmark and Belgium are the other countries who have taken the same stand in the matter of sexual assistance to the differently abled. These countries though not directly disbursing funds for sexual assistance, has taken an affirmative stand by their policy in providing funds through NGO, and other charitable organization and is not standing in the way of utilizing these funds for the sexual benefits of the disabled as per their requirement. It’s quite an admirable thing that, it was possible for these countries to think in terms of the sexual wellness of its differently abled citizens and allocate resources for the same.

12. As per survey done by world health organization, 15% (fifteen) percent of the words population approximately 1(one) billion people across the globe are differently abled _¹¹. Sad thing is that despite their disability, the differently abled persons still have an instinctive craving for sex and most of them are not in fit mental state to understand what it is, and for some of them, even if they do, they are not in a position to fulfill that automatic passion due to their peculiar mental or physical state. These people are entitled for a protective discrimination in the matter of sexual rights as in the case of any other rights made available for them as per the various positive legislations in this regard.

13. An organization in United Kingdom named TLC trust _¹² has come up with a unique idea of sexual surrogacy for persons with disability. The idea is to connect persons with disability with sex workers who have received special training to deal with differently abled persons enabling them to experience sexual intimacy, physical expression, cuddling and all other activities relating to exploring sexual activity. These trained sexual surrogates give their services understanding the conditions of the differently abled and taking into account their physical and mental conditions and prioritizing their privacy.

14. Sexual surrogacy_¹³ seems to be the right answer to take care of the physical needs of differently abled people who have biological urges which they are not able to properly realize and deal and channelize for a natural climax. To deal with their physical needs of intimacy, companionship, touch, cuddle, kiss and to feel the emotional closeness and to understand their sexuality and physical sensuality. Surrogate partner therapy (SPT) seems to be an excellent option to mitigate the hardships faced by the differently abled persons. These sexual surrogates need to be given proper training as per the requirement and the medical condition of the differently abled person. For example, for some of them, physical intimacy, touch or cuddling to the level of foreplay will be sufficient and comfortable taking into account their condition of body or mind without the requirement of complete sex. Apart from this sexual surrogacy gives a safe space for the differently abled to explore their sexuality and ease out their frustration due to active hormones. To make the surrogate partner therapy safer there need to be some arraignment to monitor sexual surrogacy in a legitimate and responsible background, so that the differently abled are given an opportunity to experience the essential expressions of life. It will also help them to get rid of unwanted frustration, caused by both mental and physical conditions.

15. Once we understand the problem faced by the differently abled in the realm of sexuality the question regarding the ethical consideration of the surrogate partner therapy may concern us especially when viewed form the angle of historic social norms, culture and morality. There is also an important concern which demands for a concrete response i.e. the question who has to give consent for this noble quest to address the essential craving of a differently abled especially in the case of intellectual disability to the level of a legal minor. When the condition of the differently abled does not qualify him to legally consent for such a bold endeavor, as per the contemporary standards, the authority to consent on his behalf can be given to the natural or legal guardian as in the case of minors, and the same can be subject to scrutiny by an independent body like an independent committee constituted by authority of law or to a Judicial body. Professional help of doctors or para medics can be availed to set boundaries of sexual activity considering the health, or mental condition of the person with disability. specific focus should be given to the concept of wholesome healing and mitigating the mental frustration of the differently abled without completely focusing on ordinary sexual satisfaction.

16. When talking about “sexual surrogacy” we should not confuse the same with “sex work”, former term is more connected with the therapeutic side of the sexuality, for the people who are in need of care, considering their peculiar mental and physical condition and we are objectively delivering for them a circumstance to explore their sexuality for their wellbeing. The point of difference between sexual surrogacy and prostitution should be clearly understood, sexual surrogacy is not aimed at sexual or genital stimulation alone, they aim to help person to overcome the troubles caused by sex hormones and mental frustration caused by lack of physical and emotional intimacy.

17. There are only a very few countries which has recognized sexual surrogacy, in united states for instance has an organization like the international Professional Surrogates Association (IPSA)_¹⁴ which provide ethical and legal training and guidelines for surrogate partners, Israel, also recognizes sexual surrogacy for legitimate purpose _¹⁵.

18. There may arise a question why can’t we adopt latest technologies available in sexual wellness to redress the problem. Though the use of sex toys is at vogue in alarming rate _¹⁶ among people and AI _¹⁷ based intimate technology, close to human sex toys are very much available, but their use for the benefit of differently abled has many issues including hygiene and maintenance, potential injury from devices, emotional sense of guilt using the same, requirement of third parry assistance while operating etc. Though the use of intimate technologies can be recommended to avoid the ethical and moral issues related to engaging a sexual surrogate partner, the same cannot be treated as a complete solution to the problem.

19. Our country has no law accepting sexual surrogacy. The Immoral traffic (preven-tion) Act 1956 has to be amended at least to the extent of enabling differently abled persons to access sexuality with professional help. The professional service of surrogate partner can be interpreted to be a prohibitive act of solicitation as per the Immoral Traffic (Prevention) Act 1956. The existing provisions of Immoral Traffic (Prevention) Act 1956 _¹⁸, can be amended introducing sexual surrogacy partner arraignment to the needy, once their condition is certified medically. The provisions of the Immoral traffic (prevention) Act 1956 seem to be outdated and lagging behind the social change and the shifting necessities of time and still sems to be holding down colonial concept of morality and ethics. As per the existing Indian law it will also be difficult sexual surrogacy agreement as legal and valid in view of Section 23 of the Indian Contract Act 1872 making it illegal if the object or consideration of contract is Immoral or illegal _¹⁹.

20. A refined society cannot be myopic about the essential elements of life being undelivered to a section of society, only due to their specific condition of body or mind. Ethical considerations blowing out of proportion, the concept of primitive morality, cannot prevent people suffering special conditions in life from accessing basic physiological necessities which have therapeutic benefits on them. We need to draw line between sexual surrogate therapy and prostitution. A proper licensing and monitoring system by the authorities certifying sexual therapist and the persons entitled for their service can solve the ethical concern regarding the issue. We need to get rid of our false morality and accept the factual reality at least in cases of people with physical and physiological barriers and recognize that right to sexual intimacy is not only fundamental right, at least for people with disability, they have a right to get delivered to them, access to sexual intimacy, according to their capacity to experience the same.

21. We all are motivated by the pleasure centers in our brain, and they play a key role in crafting the final social version that we are at contemporary. Civilized living is a name given to the sum total of responsibilities that every member of the society is the bound to adhere among themselves. Ethical and moral values in civilization is not confined to imposing negative sanctions in the name of historic morality, but dynamically evolving and understanding the core necessities and positively and compassionately addressing and redressing the same. Letes hope that the collective wisdom of the society will evolve to the essential level of understating this vital issue suffered by the differently abled.

 

Foot Notes

1.Dopamine, Serotonin, Oxytocin and Endorphins --Neurotransmitter’s which is an important part of brain reward system associated with pleasurable sensations, mood regulators, Feel good love hormones and pain relivers.

2.Testosterone primary male hormone regulating sex differentiation, producing male sex characteristics,
sex drive, spermatogenesis, and fertility.

3.   Estrogen A type of hormone made by the body that helps develop and maintain female sex characteristics and the growth of long bones, regulates the menstrual cycle support pregnancy etc.

4. Androgen drugs block the action of male sex hormones from reaching the recipients thereby reducing sex drive.

5.China introduced Maternal and Infant Health Care Law (1994), Chapter II Article 10 provides for pre-marital medical examinations and power to advice for sterilization if found inappropriate for child bearing due to any congenital disease.

6.Article 21. Protection of life and personal liberty-No person shall be deprived of his life or personal liberty except according to procedure established by law.

7.  (2009 (4) KLT SN 26 (C.No.29) SC = (2009) 13 (ADDL.) SCR 989)Suchita Srivastava & Anr. A v.
Chandigarh Administration, right of reproductive choice (2017 (4) KLT 1 (SC) = 2017 10 SCC 1)
Justice K.S. Puttaswamy v. Union of India, autonomy over personal relationship, Navtej Singh Johar v. Union of India right (2018 (4) KLT 1 (SC) = AIR 2018 Supreme Court 4321), Decriminalizing consensual same sexual relationship, Maneka Ghadhi v Union of Inda (1978 KLT OnLine 1001 (SC) = 1978 AIR 597), Right to Travel.

8.Right of persons with disabilities Act 2016, Sections 44,45 and 46 mandates buildings to be accessible to the differently abled and prescribes time span to convert existing building accessible to them.

9.United Nations convention on the rights of persons with disabilities, Article 23 reinforces the right of people with disabilities to find and maintain a family and to retain their fertility on an equal basis with others.

10.Dutch Social Support Act, Long-Term Care Act and Personal Care Budget provide for various type of economic grant for personal care and sexual assistance.

11.As per the World disability report jointly made by the World health organization and the world bank in the year 2011. Available at http://whqlibdoc.who.int/publications/2011/9789240685215_eng.pdf?ua=1.

12.A trust formed in United Kingdom for the purpose of providing sexual intimate service to help people with disabilities to learn about physical pleasure and enable them to experience personal sexual relationships.

13.Sexual surrogacy or surrogate partner therapy, is a therapy, where a trained professional engages in guided intimacy or sexual activity under the supervision of a sexual therapist for a person having special needs including differently abled persons.

14. A non-profit organization, IPSA supports a worldwide community of professionals in the field of surrogate partner therapy, which includes surrogate partners, therapists, and individuals in need of and supportive of surrogate partner therapy.

15. Sexual surrogacy is allowed in Israel with government support to help injured soldiers in war to have access to sexual intimacy.

16. As per “Statista” a global data and business intelligence platform, an extensive Usage and ownership of sex toys are on the rise worldwide. The global sex toy market is expected to grow steadily between 2019 to 2026, from approximately 27.17 billion U.S. dollars to around 52.7 billion U.S. dollars in that time period, reaching a value of 80.7 billion U.S. dollars by 2030.

17. Artificial intelligence

18. Section 8 of the immoral traffic(prevention) Act 1956 makes any kind of soliciting an offence punishable under the Act.

19.  Indian contract Act 1872, Section 23. What considerations and objects are lawful, and what not. —The consideration or object of an agreement is lawful, unless— it is forbidden by law or is of such a nature that if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.

LEGISLATIVE MEASURES TO PROTECT RIGHTS OF WOMEN: - LAW IN BOOK AND LAW IN OPERATION IN THE FIELD

Leela R. Advocate, High Court of Kerala

Email: advleelanarayanan@gmail.com        Mob: 9847224362

“We need women who are so strong they can be gentle, so educated they can be humble, so fierce, they can be compassionate, so Passionate then can be rationale and so disciplined they can be free”

The Article tries to highlight on the pre-independent status, contribution of the 15 women who made exceptional contribution to draft the Indian Constitution, post-independent status of women, the legislative enactments made for protection of the rights of women in consensus with CEDAW the International convention, the effectiveness of the enactments and the judicial contributions and interpretations to protect the rights of women. An analytical discussion on the Laws in Paper and the Law in practice 

STATUS OF WOMEN IN PRE-INDEPENDENCE

The status of women in India, before the country attained independence experienced numerous problems and challenges. With the prevalence of the male dominance, there were constraints imposed upon women in terms of number of aspects, these include, acquisition of education, employment opportunities, forced child marriage, purdah system, sati and so forth.

STATUS OF WOMEN IN THE MEDIEVAL PERIOD

Within the course of time, the position of women deteriorated during the medieval period. During this period, the systems of purdah and jauhar were being introduced by the Rajput and Muslim communities. In both these systems, the liberty of woman was curtailed by the community. During this period, women rendered an active participation in social, political, cultural, educational and religious fields. In this period, the Bhakti movement also rendered a significant contribution for leading to improvement as well as impoverishment in the status of women. This movement primarily focused upon enhancing the status of women in society.

Polygamy

In ancient India, the practice of polygamy was prevalent. In the present existence, the laws for marriage are well defined in terms of every religion.

Sati

One of the serious challenges that are experienced by all the activities and reformers was the prevalence of the systems of widow immolation or sati.

The system of sati was abolished in Calcutta in 1798. Raja Ram Mohan Roy was a great reformer, who rendered a significant contribution for improving the status of women, along with assistance from Lord William Bentinck. A ban was imposed upon this system in 1829 in the British territories of India.

Child Marriage

Child marriage was regarded as a serious concern that imposed negative effects upon the overall quality of life of the individuals.

During the middle of the 19^th century, the activist started raising their voice for the determination of the minimum age of marriage for the girls and boys. Ishwar Chandra Vidyasagar and Keshab Chandra Sen, along with Mohandas Karamchand Gandhi made efforts to abolish the practice of child marriage and child marriage restraint act was put into operation in 1929.

Widow Remarriage

The conditions of widows was detrimental widows were no allowed to participate in any social, religious, cultural or political activities, they did not have any right to property and were deprived of number of rights and opportunities.

Ishwar Chandra Vidyasagar, MahadevRanade and DayanandSaraswati are the ones, who rendered a significant contribution in the reform movement of widow remarriage. The efforts made by them resulted in the enactment of the Hindu Widow Remarriage Act XV of 1856.

Right to Property

Women’s Right to Property Act XVIII of 1937 and the Hindu Succession Act XXX of 1956, the property rights of the Indian women have been unequal and unfair. During the Pre-Independent period improvement came a little with the implementation of laws. As it has been stated that position of Indian women were not appropriate and they were deprived of many rights and opportunities, hence, they were entitled to less rights, both in terms of quality and quantity.

The practice of female infanticide was common among certain castes and tribes in India, especially in the north and north-western states.  In the year 1795, female infanticide was declared to be a murder by the Bengal Regulation XXI.

POSITION OF WOMEN DURING THE EAST INDIA COMPANY

Peary Charan Sarkar began the first school for the girls in 1847 in Calcutta. During this period, with the assistance obtained from the Governor Bentinck, Raja Ram Mohan Roy had succeeded in abolishing the sati system. Due to the efforts made by Raja Ram Mohan Roy, improvements were bought about in the status of women and the system of widow remarriage was also introduced. Many of the women social reformers such as, Padita Ramabai began the movement that put emphasis upon the freedom of women within the Indian society. RaniLakshmibai fought for the independence of the country. Though women inculcated skills and abilities among themselves in various art forms, but their status within the society was in an underprivileged state.

WOMEN WHO CONTRIBUTED TO OUR CONSTITUTION

As we celebrate women’s day, we must recall, recognize, and pay tribute to the 15 women among the 299 members who tirelessly worked to draft one of the most progressive constitutions in the world. The remarkable contributions made by the 15 exceptional women members of the Constituent Assembly who belonged to diverse backgrounds and fought many battles to shape the Indian Constitution.

Ammu Swaminathan

A courageous social worker and political leader. She was a strong advocate of women’s rights and called for reform of laws related to succession, inheritance and marriage.

Annie Mascarene

A lawyer and a prominent leader of the movements for independence majorly contributed to the debates on federalism.

Dakshayani Velayudhan

The youngest and the only Dalit woman vehemently opposed untouchability and raised her voice in support of the core principle of decentralization of power in the governance structure.

Begum Aizaz Rasul

The only Muslim woman member dedicated her life for the upliftment of the marginalized by becoming their voice.

Durgabai Deshmukh

A prominent lawyer, freedom fighter, promoted women’s rights and laid emphasis on the need to set up separate family courts in India.

Hansa Jivraj Mehta

A social activist and feminist, the president of the All India Women’s Conference (AIWC) and proposed a Charter for Women’s Rights and Duties.

Kamla Chaudhry

A Hindi story writer encouraged the education of girls in villages and backward areas.

Leela Roy

A freedom fighter and a social worker who dedicated herself to the relief and rehabilitation of refugees.

Malati Choudhury

Instrumental in emphasizing the role of education, especially adult education.

Purnima Banerjee

A prominent leader actively worked with the farmers and trade unions and rallied them in the freedom struggle.

Rajkumari Amrit Kaur

Made a significant contribution to the Quit India Movement in 1942. Her contribution to the advancement of social and political rights of women are noteworthy. 

Renuka Ray

Made several interventions in the assembly including on the rights of minorities, women’s rights and bicameral legislature. Ray campaigned for the advancement of women’s rights and inheritance rights for women in parental property.

Sarojini Naidu

An Indian independence activist and poetess became the President of the Indian National Congress and encouraged many women to participate in the freedom struggle.

Sucheta Kripalani

Played a prominent role in the Quit India Movement of 1942 and also rose to become India’s first woman Chief Minister.

Vijaya Lakshmi Pandit

A pioneering policymaker, activist, minister, ambassador, and diplomat who revolutionized the role of women in nation building. In 1953, she became the first woman President of the UN General Assembly.

The contributions of the 15 women led way to recognition of Right for Women. Post independence Women’s Rights in India have evolved in complete & interesting ways. The principle of gender equality is enshrined in the Indian Constitution in its preamble, Fundamental Rights, Fundamental Duties & Directive Principles.

Fundamental Rights, among others, ensure equality before the law and equal protection of law; prohibits discrimination against any citizen on grounds of religion, race, caste, sex or place of birth, and guarantee equality of opportunity to all citizens in matters relating to employment.

POST INDEPENDENCE

During Pre-independence when social reform was the main focus, post-independence the focus on the rights of women shifter from social reforms to boarder concept of gender equality and empowerment.  The international conventions led to focus on welfare approach movements to Right based approach.  Women from all sections started to lead movements for education of girl child, against infanticides, trafficking etc., which paved way to protective legislations. 

Constitutional & Legislative safeguards:

There is a wide range of constitutional and statutory provisions focused on women. The constitution of India sets out the founding principles safeguarding the Fundamental Rights of all citizens. Article 15(1) guarantees non-discrimination on the ground of “religion, race, caste, sex, place of birth or any of them”. Article 15(3) expressly permits the State to make special provisions for women and children in the form of reservations or other means. Article 15(4) states that the State can make special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. Article 16(1) guarantees equal opportunity in matters of public employment and Article 17 prescribes the social evil of untouchability. Together these articles underpin the rights to equality and equitable opportunities for all persons, and are known as “Equality code.” Article 19 protects the rights of citizens to freedom of speech and expression, to move freely throughout the country and to practice a profession, trade, or occupation of their choice. This Article is relevant to the rights of women to not have their movements restricted, and to pursue the employment of their choice. Article 21 guarantees the right to life and personal liberty of all persons and the Supreme Court of India has interpreted it to include the rights to live with dignity and autonomy, the right to privacy the right to livelihood and the right to health. 

•  The Employees State Insurance Act, 1948

The Employees’ State Insurance Act, 1948 (ESI Act) is a social welfare legislation that offers benefits to employees in case of sickness, maternity, and employment injury. The Act aims to protect employees from financial hardship due to medical conditions.

The Employees’ State Insurance Act, 1948 is a piece of social welfare legislation enacted primarily with the object of providing certain benefits to employees in case of sickness, maternity and employment injury and also to make provisions for certain other matters incidental thereto.

• The Family Courts Act, 1954

The Family Courts Act, 1984 aims to establish family courts to resolve disputes related to marriage and family affairs. The act’s objectives include: 

•  Conciliation

•  Speedy settlement

•  Promote marriage 

•  Provide expertise

•  Provide an informal atmosphere 

•  Associate with social welfare 

•  Provide for the custody of children 

•  Provide for maintenance

•  Provide for matrimonial relief 

The main objective of the family court was to provide speedy settlement with fewer expenses and formalities, in disputes relating to marriage and family and to make an agreement between the parties for their reconciliation.

• The Special Marriage Act, 1954

The Special Marriage Act of 1954 aims to provide a legal framework for a secular civil marriage, allowing individuals of any religion or caste to marry without converting to their partner’s faith, essentially promoting interfaith and inter-caste marriages by enabling couples to register their marriage under civil law, regardless of their religious beliefs; its primary objective is to facilitate individual freedom of choice in marriage and social harmony by removing religious barriers to marriage. 

Key points about the scope and objectives of the Special Marriage Act:

•  Secular Marriage

•  Interfaith and Inter-caste Marriages

•  Individual Freedom of Choice

•  Legal Framework

•  Applicability

• The Hindu Marriage Act, 1955

The Hindu Marriage Act is a law in India that governs marriages among Hindus, Buddhists, Jains and Sikhs. It provides rules and regulations for solemnizing and registering marriages. The act specifies conditions for a valid marriage, rights, and obligations of spouses, and grounds for divorce.

The Hindu Marriage Act, 1955 (hereinafter referred to as ‘HMA’) not only aims to preserve marriage as a sacred institution but also as legislation that protects the rights of women and individuals in their marriage.

• The Hindu Succession Act, 1956 with amendment in 2005

The Indian Succession Act primarily addresses the transfer of property after an individual’s death. It provides a legal framework for distributing assets among heirs, ensuring a systematic and equitable process. This Act applies to all individuals domiciled in India, regardless of their religion or nationality.

Object of amendment of the Hindu Succession Act, 1956 is to remove the discrimination between sons and daughters, and to give equal rights to the daughters in the Hindu MitaksharaCoparcenary property as the sons have.

• Immoral Traffic (Prevention) Act, 1956

The Immoral Traffic (Prevention) Act, 1956 aims to prevent the trafficking of humans, particularly women and girls, for commercial sexual exploitation by criminalizing activities like running brothels, procuring individuals for prostitution, and living off the earnings of prostitution, while also providing mechanisms for the rescue and rehabilitation of victims involved in such practices; essentially aiming to curb the organized commercialization of sex work in India. 

• The Maternity Benefit Act, 1961 (Amended in 1995)

The Maternity Benefit Act, 1961 (amended in 1995) aims to protect the employment of women during their maternity period by providing them with paid maternity leave, ensuring job security, and guaranteeing access to necessary healthcare facilities, allowing them to adequately care for their newborns while maintaining their employment status; essentially, its scope is to regulate the employment of women in certain establishments before and after childbirth, providing them with maternity benefits and safeguarding their jobs during this time. 

The Maternity Benefit Act, 1961 aims to provide all these facilities to a working woman in a dignified manner so that she may overcome the state of motherhood honourably, peaceably, undeterred by the fear of being victimised for forced absence during the pre-or post-natal period, Municipal Corpn. The Act grants maternity leave of up to 26 weeks for women employees, with full wages, before and after childbirth. It also permits a discretionary extension of maternity leave up to 12 weeks in case of medical complications related to pregnancy, delivery, premature birth, or miscarriage.

•  Dowry Prohibition Act, 1961

The Dowry Prohibition Act, 1961 aims to completely eliminate the practice of dowry in India by prohibiting the giving or receiving of dowry, effectively criminalizing the demand, giving, and taking of dowry in connection with a marriage, with the primary objective of protecting women from exploitation and violence related to dowry demands and to promote gender equality by discouraging the practice altogether; it also includes provisions to punish those who violate the law with imprisonment and fines. 

Key aspects of the Act are:

•   Prohibition of dowry demand

•   Criminalizing giving and taking dowry

•   Registration of gifts

•   Protection against dowry-related violence

•   Enforcement mechanism

•  The Medical Termination of Pregnancy Act, 1971

An Act to provide for the termination of certain pregnancies by registered Medical Practitioners and for matters connected therewith or incidental thereto.

The primary objective of the Medical Termination of Pregnancy (MTP) Act 1971 was to enhance maternal health by ensuring the provision of safe abortion services for women. This act not only offered protection to medical practitioners but also decriminalized individuals seeking abortion.

The Equal Remuneration Act, 1976

The Equal Remuneration Act of 1976 was passed to ensure equal pay for men and women for the same work. It also aims to prevent discrimination against women in the workplace and

•   Applies to both the public and private sectors

•   Covers all establishments where men and women do the same or similar work

It was enacted to make it illegal for employers to discriminate between men and women employees on their pay scale

•   Ensure equal pay for men and women for the same work

•   Promote women’s participation in the workforce

•   Remove discrimination against women in the workforce

•   Protect people from being unfairly dismissed due to their gender

•   Create a fair and equitable work environment

•   Provide equality of opportunity in employment

• The Prohibition of Child Marriage Act, 2006

The Prohibition of Child Marriage Act, 2006 aims to prevent child marriage by raising awareness, collecting evidence, and advising communities not to support child marriage. 

•   Objectives of the Act

•   Raise awareness

•   Collect evidence

•   Provide advice

•   Create awareness

•   Provide statistics

This new Act is armed with enabling provisions to prohibit child marriage, protect and provide relief to victim and enhance punishment for those who abet, promote or solemnize such marriage and 18 years in case of female be solemnized. Child marriage: A marriage in which either party is a child.

Right to Free Legal Aid

This right ensures that women, especially those with limited resources, can access legal assistance when needed. Understanding this right helps women seek justice without worrying about financial barriers.

Prohibition of Night Work

Section 66(1)(b) of the Factories Act, 1948, restricts the employment of women in certain occupations during night shifts. This provision aims to protect the safety and well-being of female workers, acknowledging the potential risks associated with night time work.

Criminal Legislations

a. The Indian Penal Code, 1860 (“I.P.C.”) now the Bharatiya Nyaya Sanhita, 2023 (“BNS”)

The I.P.C. was the criminal code in effect in India until its repeal in 2023, with the coming into effect of the Bharatiya Nyaya Sanhita, 2023. Although the I.P.C. is no longer in effect, the cases on criminal law covered in this book rely on the I.P.C. The law laid down in these cases will be equally applicable to corresponding provisions in the new BNS Act, unless otherwise specified. Both the IPC and the BNS list various provisions penalizing violence, rape and other offences against women including:

•  Dowry Death

•  Causing of Miscarriage

•  Sexual Assault

•  Sexual harassment, stalking and voyeurism

•  Rape

•  Other sexual offences

•  Fraudulent marriage

•  Domestic cruelty

b. The Code of Criminal Procedure, 1873 (“Cr.P.C.”) now Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”)

The Cr.P.C. was the companion code to the I.P.C., detailing the procedures relevant to the charging of any criminal offence. While there are many procedures integrated within the code to ensure the safety to women during arrest or during the collection of evidence, by far the most significant woman-centric provision was Section 125. Section 125 of the Cr.P.C., and now Section 144 of the BNSS, empower women to claim financial maintenance for their husbands where they have neglected to do so. It serves as a critical tool for women to be able to support themselves and their children during separation and divorce.

• Indecent Representation of Women (Prohibition) Act, 1986

The Indecent Representation of Women (Prohibition) Act, 1986 was enacted to protect women’s dignity and respect by prohibiting their indecent portrayal in media and other forms of communicationit;

•  Applies to the whole of India

•  Prohibits indecent representation of women in advertisements, publications, paintings, films, and more

•  Defines what constitutes indecent representation of women

•  Provides penalties for contravention of the provisions

•  Special courts are constituted for the trial of offences under the Act

Objectives are;

•  To ensure that women are depicted in media in a way that does not degrade or exploit their image 

•  To create an environment where women are represented accurately and appropriately in all forms of advertising 

•  To promote a more inclusive and respectful portrayal of women

•  To challenge and dismantle the objectification of women in advertising

•  To ensure that women are represented in a diverse and authentic manner

• Commission of Sati (Prevention) Act, 1987

The Commission of Sati (Prevention) Act, 1987 aims to effectively prevent the practice of “Sati,” which is the burning or burying alive of a widow on her husband’s funeral pyre, by making it illegal to abet, glorify, or attempt to commit sati, and also establishes a commission to investigate and take action against such attempts; essentially aiming to eradicate the practice entirely and prevent its glorification within Indian society. 

• The Protection of Women from Domestic Violence Act, 2005

The Domestic Violence Act was meant to provide protection to the wife or female live-in partner from acts of domestic violence at the hands of her husband or male live-in partner. The laws within the act also extend to protect women who are widows, mothers or sisters from acts of domestic violence.

An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and formatters connected therewith or incidental thereto.

The first authoritative pronouncement by the Apex Court on the meaning of the term relationship in the nature of marriage or live-in relationships in the context of the 2005 Act appeared in 2011 in the case of D.Velusamy and then in 2013 in the Indra Sarma case. Incidentally, both judgments related to claims of maintenance. The Supreme Court of India ruled that live-in relationships, which can last for a long time and result in standards of interdependence and uncertainty, must be adequately protected due to the rise in live-in relationships, especially for women and those children who are born out of such relationships.

• Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (referred to as POSH Act hereinafter)

In the Vishaka Guidelines, the Supreme Court placed an obligation on workplaces, institutions and those in positions of responsibility, to uphold working women’s fundamental right to equality and dignity at the workplace. Three key obligations were imposed on institutions to meet that standard, namely:

•  Prohibition

•  Prevention

•  Redress

In 2013, the Government of India notified the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressel) Act (referred to as Act hereinafter). Consistent with the Vishaka judgment, the Act aspires to ensure women’s right to workplace equality, free from sexual harassment through compliance with the above mentioned three elements.

The Assisted Reproductive Technology Act, 2021 (“ART Act”) regulates clinics and practitioners of assisted reproductive technology, and makes ART services available to single women above the age of 21 and married heterosexual couples who are infertile. The ART Act expressly forbids sex selective assisted reproductive technology.

The Surrogacy (Regulation) Act, 2021 (“Surrogacy Act”) specifically regulates surrogacy as a mode of ART and has been criticized for severely limiting access to surrogacy in India. Some of the main provisions of the Surrogacy Act are:

•  “Intending Woman or Couple”

Surrogacy is only available to heterosexual married couples (the ‘intending couple’) or widowed or divorced women (‘intending woman’), on the condition that there exists a certified medical necessity (Section 4). Single unmarried women, men or queer couples cannot use a surrogate.

•  Prohibition of Commercial Surrogacy

Altruistic surrogacy, in which no remuneration except the medical expenses and the insurance coverage for the surrogate mother are given, is permitted. The commercialization of surrogacy is expressly prohibited (Section 3).

•  Eligible Surrogates

The Act also prescribes who is eligible to be a surrogate. Only a woman between 25 to 35 years having a child of her own, who is or was married, shall be allowed to be a surrogate mother once in her lifetime (Section 4). This provision is also intended to prevent commercial or exploitative surrogacy.

Muslim Women (Protection of Rights on Marriage) Act, 2019 passed on 30 July 2019 after a very long discussion and opposition made triple talaq illegal in India on 1 August 2019, replacing the triple talaq ordinance promulgated in February 2019. It stipulates that instant triple talaq (talaq-e-biddat) in any form – spoken, written, or by electronic means such as email or SMS – is illegal and void, with up to three years in jail for the husband. Under the new law, an aggrieved woman is entitled to demand maintenance for her dependent children. The Act

Prohibits Triple Talaq

Provides custody and maintenance

Punishes husbands

Makes offenses cognizable

Makes offenses compoundable

CEDAW

India is a signatory to Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The treaty was signed on 30^thJuly, 1980 and was ratified on 9^th July, 1993.

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979 by United Nations, is focusing entirely on elimination of all forms of discrimination against women. Because India is a signatory to the convention so it becomes binding on India to take all appropriate measures in the direction of eliminating discrimination against women. No doubt Constitution grants equal rights to women along with their counterparts in all the fields. Some legislation also makes the women to stand on a higher pedestal than men. But the facts remains that Judiciary had played a vital role in enforcing women’s Right and preserving the Constitutional Right.

The Judicial Intervention to Protect the Right to Women against Discrimination

Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa & Others, (1987 (1) KLT OnLine 1008 (SC) = 1987 INSC 81; MANU/SC/0446/1987).

The question of law considered was “The Right of Women to equal pay for performing the same (or) similar work.”

The Apex Court in the landmark Judgment emphasized that employers cannot differentiate between men and women who are performing similar job by assigning different “Job titles” only to subvert the Equal Remuneration Act, 1976. It is vital to note that though all of employer in assigning different job title for same work to reduce the pay of woman was not challenged as violative of Article 15(1), the Apex Court verdict is considered the landmark Judgment on the right of women for equal pay.

Anuj Garg v. Hotel Association of India and Others (2008 (2) KLT SN 69 (C.No.83) SC = AIR 2008 SCC 663);

The Apex Court while considering the constitutional validity of S.30 of Punjab Excise Act, 1914 held that Right to Employment is not a Fundamental Right but right to be considered for employment is a fundamental Right under Article 16 of the Constitution of India. The Apex Court therefore held that any discriminatory provision on the basis of sex, rested on stereotypes of the role of men and women in society is “Unconstitutional.”

Gender discrimination in work was again considered by Apex Court in the year 2018 in Navtej Sing Johar v. Union of India (2018 (4) KLT 1 (SC) = AIR 2018 SC 4321) where again the Apex Court reiterated that all provisions discriminating women’s right to employment is “Unconstitutional.”

Charu Khurana v. Union of India and Others, (2015 (1) KLT SN 45 (C.No. 62) SC = AIR 2015 SC 839);

Discrimination and deprivation of the right to choose career only on account of sex was considered by the Apex Court in The petitioner who was a Make-up artists was denied her right to become member in the Cine Costume Make-up Artists and Hairdressers Association challenged the rules which allowed only “men” to be make-up artists.

The Division Bench of Apex Court finding the rules a clear violation of the Equality Principle guaranteed under Article 14 as well as the constitutional right to choose ones profession held the rules unconstitutional. The Court found that though the Respondent Trade Union is a private entity, any by-laws of the trade union which is registered with the State and calling itself an Association cannot violate the Fundamental Rights guaranteed under Constitution.

Lt. Colonel Nitisha and Others v. Union of India and Others (2021 (2) KLT OnLine 1034 (SC) = (2021) 15 SCC 125)

In the year 2021 the Apex Court in had occasion to consider the “direct & indirect” discrimination against women in selection criteria. The Apex Court by its significant pronouncement laid down guidelines for understanding and addressing “indirect discrimination.”

Bombay Labour Union Representing the Workmen of International Franchise Pvt. Ltd. v. International Franchise Pvt. Ltd. (AIR 1966 SC 942)

Can women be barred from service on account of her Marital Status? The Apex Court in held that the assumption that married women will be less productive is without any legal basis and that discriminating and preventing employment opportunity to women solely on the reason of possible maternity leave is unreasonable. The rule was found unconstitutional.

C.B. Muthamma v. Union of India and Others (1979 KLT OnLine 1008 (SC) = (1979) 4 SSCC 260);

The Rule 8(2) of the Indian Foreign Service (Conduct & Discipline) Rules, 1961 was challenged as being discriminatory. The Rule required that women has to obtain written permission of the Government before her marriage and had to give a written undertaking that any time after her marriage, she may be required to resign from the service.

Holding that Rule 8(2) was clearly violative of Article 16 of Constitution of India the Apex Court struck down Rule 8(2) as unconstitutional further Rule 18(4) which denied married women right to be appointed in public employment was also struck down as unconstitutional.

Air India v. Nergesh Meerza and Others, (1981 KLT OnLine 1007 (SC) = (1981) 4 SCC 335)

The year 1981 led to another significant question before the Apex Court, “Can women be discriminated on the basis of marriage & pregnancy?” Answering the same Apex Court ; “We are also unable to understand the argument of the Corporation that a woman after bearing children becomes weak in physique or in her constitution. There is neither any legal nor medical authority for his bald proposition. Having taken the AH [Air Hostess] in service and after having utilized her services for four years, to terminate her service by the Management if she becomes pregnant amounts to compelling the poor AH not to have any children and thus interfere with and divert the ordinary course of human nature. It seems to us that the termination of the services of an AH under such circumstances is not only a callous and cruel act but an open insult to Indian womanhood the most sacrosanct and cherished institution. We are constrained to observe that such a course of action is extremely detestable and abhorrent to the notions of a civilized society. Apart from being grossly unethical, it smacks of a deep-rooted sense of utter selfishness at the cost of all human values. Such a provision, therefore, is not only manifestly unreasonable and arbitrary but contains the quality of unfairness and exhibits naked despotism and is therefore, clearly violative of Article 14 of the Constitution”.

Neera Mathur v. Life Insurance Corporation of India and Another, (AIR 1992 SC 392)

Again a similar issue came up before the Apex Court, where the Apex Court again held not to discriminate women due to pregnancy and further held that requiring a woman to disclose intimate details such as menstrual cycles and pregnancies violates their dignity and privacy.

Mohd. Ahmed Khan v. Shah Bano Begam (1985 KLT OnLine 1235 (SC) = (1985) 2 SCC 556)

The Supreme Court held that there is no conflict between the provisions of Section 125 Cr.P.C. and those of the Muslim Personal Law on the question of the Muslim husband’s obligation to provide maintenance for a divorced wife who is unable to maintain herself.

Shamima Farooqui v. Shahid Khan (2015 (2) KLT SN 78 (C.No.89) SC = AIR 2015 SC 2025)

The quantum of maintenance under Section 125 of the Criminal Procedure Code (Cr.P.C.) is determined by the Court based on the circumstances of each case. There is no fixed amount of maintenance.

Factors considered:-

• The financial capacity of the person from whom maintenance is being claimed.
• The needs of the claimant 
• The standard of living that the claimant is accustomed to
• The earning capacity of the person
• The number of dependents
• The possession of property by the husband and wife 
• The financial requirements 

Rajnesh v. Neha (2020 KHC (6) SC 1)

In a landmark Judgment, the Supreme Court laid down comprehensive guidelines for determining the quantum of maintenance in cases under Section 125 of Cr.P.C. The Court provided a detailed methodology for calculating maintenance, taking into account factors such as the financial capacity of the parties, the standard of living, the age and health of the parties, and the duration of the marriage. 

• These Judgments have significantly shaped the interpretation and application of Section 125 Cr.P.C., ensuring that the provision effectively serves its purpose of preventing destitution and providing social justice.

Danial Latifi and Ors. v. Union of India (UOI) (2001 (3) KLT 651 (SC) = MANU/SC/0595/2001)

Muslim Women’s Act (MWA) was challenged on the grounds that it violated the right to equality under Articles 14 & 15 as well as the right to life under Article 21. The Supreme Court while holding the law as constitutional harmonized it with section 125 of Cr.P.C. and held that the amount received by a wife during iddat period should be large enough to maintain her during iddat as well as provide for her future. Thus under the law of the land, a divorced Muslim woman is entitled to the provision of maintenance for a lifetime or until she is remarried.

Sarla Mudgal Case v. Union Of India (1995 (2) KLT 45 (SC) = AIR 1995 SC 1531) – In this case, the question was whether a Hindu husband married under the Hindu law, by embracing Islam, can solemnize a second marriage. The court held that the Hindu marriage solemnized under Hindu law can only be dissolved on any of the grounds specified under the Hindu Marriage Act 1955. Conversion to Islam and marrying again, would not by itself dissolve the Hindu marriage under the act and thus, a second marriage solemnized after converting to Islam would be an offence under section 494 of the Indian Penal Code (I.P.C.).

Shayara Bano v. Union of India (2017 (3) KLT SN 67 (C.No.87) SC = (2017) 9 SCC 1)

Shayara Bano, a 35 – year -old woman, challenged the practice after getting divorced under the tripletail aqcustom. In 2017, the Supreme Court, in a landmark 3-2 verdict, had struck down instant triple talaq. Three of the five judges on the Constitution Bench had called the practice un – Islamic and “arbitrary” and disagreed with the view that triple talaq was an integral part of religious practice.

Rajiv Varghese v. Rose Chakrammakkil Francis: (2024 (6) KLT 536 (SC) = 2024 KLT OnLine 2766 (SC) = 2024 SCC Online SC 3367)

Found that wife had sacrificed her employment after marriage and was accustomed to certain standard of living in Matrimonial home. Therefore during the pendency of Divorce petition she is entitled to enjoy the same amenities of life as she would have been entitled to in her matrimonial home.

X v. Principal Secretary, Health and Family Welfare,Govt. of NCT Delhi 3 (2022 (5) KLT 747 (SC) = 2022 SCC OnLine SC 1321):

The Supreme Court gave the right to all women to terminate their pregnancy under the MTP Act, 1971 within 24 weeks of pregnancy.

A (mother of X) v. state of Maharastra and another (2024 KLT OnLine 2607 (SC) = (2024) 5 S.C.R 470)

The Apex court held: The Act protects the registered medical practitioners -RMP and the medical boards when they form an opinion in good faith as to the termination of pregnancy - Fear of prosecution among registered medical practitioners is a barrier for pregnant persons to access safe and legal abortions.

The landmark Judgment to protect women from sexual harassment;

Vishaka v. State of Rajasthan (1997 (2) KLT SN 72 (C.No.72) SC = (1997) 6 SCC 241)

In this landmark Judgment the Apex Court held sexual harassment violates a women’s fundamental right to equality and life and liberty. The Apex Court laid down the legally binding guidelines basing it on the right to equality and dignity. It included:

•  A definition of sexual harassment

•  Shifting accountability from individuals to institutions

•  Prioritizing prevention

•  Provision of an innovative redress mechanism

The Supreme Court defined sexual harassment as any unwelcome, sexually determined physical, verbal, or non-verbal conduct, placed responsibility on employers to ensure that women did not face a hostile environment, and prohibited intimidation or victimization of those cooperating with an inquiry, including the affected complainant as well as witnesses, directed for the establishment of redressal mechanism in the form of Complaints Committee, which will look into the matters of sexual harassment of women at workplace. In the Vishaka Guidelines, the Supreme Court placed an obligation on workplaces, institutions and those in positions of responsibility, to uphold working women’s fundamental right to equality and dignity at the workplace.

Apparel Export Promotion Council v. A.K.Chopra (1999 (1) KLT SN 38 (C.No.40) SC = (1999) 1 S.C.R. 117)

The Apex Court reinforced that any form of unwanted physical contact or advances constitute sexual harassment.

Medha Kotwal Lele & Ors. v. Union of India & Ors. (2012 (4) KLT SN 73 (C.No.55) SC = AIR ONLINE 2012 SC 632)

The Supreme Court of India addressed the implementation and enforcement of the Vishaka Guidelines. These guidelines were established to combat sexual harassment at the workplace and were meant to serve as a framework for institutions until a legislative enactment could be made. The case focused on ensuring that the Vishaka Guidelines were not merely symbolic and that practical measures were put in place to enforce them effectively.

Aurelino Fermandes v. State of Goa and Others(2023 (5) KLT SN 6 (C.No.2) SC = 2023 KLT OnLine 1460 (SC) = (2023) 7 SCR 772)

The Supreme Court of India’s landmark judgment in Aureliano Fernandes v. State of Goa, was a significant step forward in the serious implementation of POSH Act in India. The Supreme Court of India has undoubtedly interfered significantly in the case of AurelianoFernandes v. State of Goa and Others, especially with regard to the execution and enforcement of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”).[11]

Key inferences of the judgment:

a. Explanation of Procedural Equity: The ruling makes it clearer what norms of procedural justice must be maintained during disciplinary actions, particularly when there are significant accusations like harassment. It highlights how crucial it is to provide those who are accused enough notice, a chance to address any charges, and a fair trial.

b. Interpretation of Natural Justice Principles: The ruling upholds people’s right to a fair and impartial trial by interpreting and applying natural justice principles. It emphasizes how important it is for decision-making organizations to operate impartially and openly, making sure that those who are accused are given the chance to defend themselves and refute any evidence presented against them.

c. Protection of Legal Rights: The ruling upholds the assumption of innocence and the right to due process for those who are accused of misbehavior. It emphasizes how crucial it is to defend these rights in order to avoid injustices and safeguard the fairness of disciplinary actions.

d. Prevention of Harassment: The ruling helps to stop future misbehavior in the workplace and in educational institutions by resolving claims of harassment and guaranteeing suitable disciplinary action. It makes it very evident that harassment will not be accepted and that those who engage in it will face consequences.

Society for Enlightenment and Voluntary Action v. Union of India (2024 (6) KLT SN 24 (C.No.18) SC = 2024 KLT OnLine 2532 (SC) = (2024) INSC 790);

A petition demanding stronger enforcement of the Prohibition of Child Marriage Act, 2006 (PCMA), the Apex Court noted that despite an explicit prohibition of child marriage, the law was being circumvented through child betrothals, that is, fixing the marriage of children who are minors. The Apex Court stated that Parliament “may consider” outlawing child betrothals under the PCMA to ensure they are included within its ambit of prohibition. The Apex Court also laid a comprehensive guidelines for enforcement of PCMA.

Dolly Rani v. Manish Kumar Chanchal (2024 (4) KLT SN 9 (C.No.6) SC = 2024 KLT OnLine 1426 (SC) = (2024) 5 SCR 510);

The Apex Court had to consider the validity of a marriage and the jurisdiction of Family Court under Section 7 of the Family Courts Act while considering an application under the Hindu Marriage Act, 1955. The Apex Court specifically held where a Hindu Marriage is not performed in accordance with the applicable rights or ceremonies such as Saptapadi the marriage will not be construed as a Hindu marriage. The decision has a far reaching implication on couples who register their marriages under the HMA without completing the ritualistic ceremony often for reasons such as visa applications.  The Apex Court had specifically found that even though the marriage is registered, if the rights and ceremonies are not performed the Family Court will not have jurisdiction to consider the application on divorce.

Parvin Kumar Jain v. Anju Jain (2024 KLT OnLine 2966 (SC) = (2024) INSC 961);

The Apex Court noting that the couple in question had been living separately for two decades, granted divorce under ‘complete justice’. Since the divorce was finalised, the Apex Court noted that the wife would be paid permanent alimony instead of maintenance (which is only granted during marriage or after separation). It noted that the key factor while deciding permanent alimony was ensuring that the “dependent spouse is not left without any support and means after the dissolution of the marriage.” While noting that alimony should not be driven by the intent of penalising the husband, the Court stated that the amount must be calculated on the basis of the social and financial status of parties, “reasonable needs” of the wife and children, the couple’s qualifications and employment status, whether the wife had other income sources, the wife’s standard of living in her matrimonial home, her “employment sacrifices” for family, and “reasonable” litigation costs borne by the wife (if she is unemployed).

Col. Ramneesh Pal Singh v. Sugandhi Aggarwal (2024 KLT OnLine 1900 (SC) = (2024) INSC 397);

The Apex Court had occasion to consider a situation where the parent who was having the custody of the minor child antagonised the child’s mind against the other parent who was not having the custody and had approached the Court seeking custody. The Apex Court cautioned the Family Courts to be weary of applying the label ‘Parental Alienation Syndrome’ (PAS) and observed that the same can influence the child’s preference and custody battles. The Apex Court specifically laid that while deciding applications for guardianship, the Court should consider the kind of socio-economic and educational opportunities the child is exposed to, their well – being, the physical surroundings and their preference as mandated under the Guardians and Wards Act, 1890.

Ivan Rathinam v. Milan Joseph (2025 (1) KLT 632 (SC)= 2025 (1) KLT 632 (SC) = (2025) LiveLaw (SC) 118);

The Apex Court held that Family Court cannot entertain paternity claim from extra marital affair. The Court observed that since the family court jurisdiction is limited to adjudicating matrimonial cause, a claim to determine paternity arising out of extra marital relationship has to be filed before regular Civil Court.

Shiju Joy v. Nisha (2021 (2) KLT 607);

The Kerala High Court has ruled that family courts cannot dispose of applications for time-bound adjudication by simply stating that the case will be disposed of at the earliest opportunity. Instead they must establish a specific time frame. Further the Kerala High Court issued guidelines for disposal of matters.

K.A. Abdul Jaleel v. T.A. Shahida (2003 (2) KLT 403 (SC) = AIR 2003 SC 2525);

Involved a significant and interesting issue on the jurisdiction of the Family Courts viz. does this court have jurisdiction to decide a dispute between parties to a former marriage as against subsisting marriage? The maintenance. The husband raised an objection as to the maintainability of the wife’s suit in the Family Court on the ground that he divorced her and the Family Court had no jurisdiction to decide the dispute between former spouses; it was argued on his behalf that the Family Court had jurisdiction to decide disputed only “between parties to the marriage” and on divorce they do not remain parties to the marriage. A further objection raised was that since the respondent wife had already filed an application under Section 3 of the Muslim Women’s Act, 1986. She could not proceed under the Family Court Act. The Family Court Act did not accept the arguments and decreed the suit against which the husband filed an appeal before the Kerala High Court which was dismissed. Hence, the husband’s appeal before the Supreme Court. Dismissing the appeal, the Court held that if the expression “suit or proceedings between parties to a marriage” were to be construed as “suit or proceedings between the parties to a marriage” were to be construed as “suit or proceedings between parties to a subsisting marriage, “it would lead to miscarriage of justice and would frustrate the object wherefore the Family Courts were set up”.

The Court emphasized that the expression “disputes relating to marriage and family affairs and matters connected therewith” in the preamble must be liberally construed. Thus, the Family Court was held to have jurisdiction to decide a dispute relating to properties claimed by the parties irrespective of whether the marriage in subsisting or not. further, the fact that the wife had already filed an application under Section 3 of the Muslim Women’s Act, was held to be no bar against the Family Court exercising jurisdiction in the matter.”

Aditi v. Jitesh Sharma, (2023 KLT OnLine 1944 (SC) = 2023 SCC Online SC 1451)

The Apex Court came down heavily on the Family Court and other Courts in India not following the guidelines issued in RajneshVs. Neha and directed the registry to circulate the Judgment to all Judges and Judicial Academies.

In B v. H ((2023) LiveLaw Kerala 70);

The Kerala High Court delved into the question of whether a decree can be sought for recovery of money and gold ornaments given as dowry, as such a transaction would be void when this practice is forbidden by law. Under Section 7 of the Dowry Prohibition Act, the taking or giving of dowry is prohibited. However, under Section 6 of the Act there is an obligation on those who receive dowry to transfer the same back to the beneficiary. The Court observed that the legislative intent of Section 6 of the Act was for the woman to be able to recover the money/gold from the person who was entrusted with the dowry.

The court observed that once it established that the gold ornaments had been entrusted by the wife to the husband or his family, the burden of proof will be on the latter to explain what happened to it.

Rajiv Varghese v. Rose Chakkrammakkil Francis (2024 (6) KLT 536 (SC) = 2024 KLT OnLine 2766 (SC) = (2024) SCC OnLine SC 3367);

The Apex Court considering the instant appeal revolving around an order of reduction of maintenance by Madras High Court, whereby the husband prayed for further reduction of monthly interim maintenance amount and wife prayed for an enhancement; the Division Bench of VikramNath and Prasanna B. Varale, JJ., found errors in evaluation made by the High Court and pointed out that it was on record that the wife had sacrificed her employment after the marriage and was accustomed to a certain standard of living in her matrimonial home. Therefore, during the pendency of the divorce petition, she is also entitled to enjoy the same amenities of life as she would have been entitled to in her matrimonial home.

Indra Sarma v. V.K.V. Sarma (2013 (4) KLT 763 (SC) = 2013 AIR SCW 6783 = 2013 (15) SCC 755);

Is a landmark judgement which was appealed before the Supreme Court. This case focuses on the role of the women in the relationship, her rights and claims, and her locus stand in a civil lawsuit against a married male and these were all extensively covered in this judgement. In this case, in order to determine whether a specific live-in relationship falls under the concept of “relationship in the nature of marriage,” the court established certain guidelines.

This case is about live-in relationship with a married man, domestic violence and maintenance in this kind of relationship. In this landmark case, it was held that a live-in relationship of a married man with a woman or of a married woman with a man is not recognized, as in the nature of marriage because the couple had no marriage-like behaviours in the entire duration of their relationship.

Hiralal P. Harsora and Ors. v. Kusum Narottamdas Harsora and Ors. (2016 (4) KLT 268 (SC) = AIR 2016 SC 4774);

The Supreme Court struck down the phrase “adult male” from the definition of respondents in the Protection from Domestic Violence Act, thereby allowing women to be respondents in cases of domestic violence.

V.D. Bhanot v. Savita Bhanot (2012 (1) KLT 637 (SC) = (2012) 3 SCC 183);

This Supreme Court case ruled that the provisions of the DV Act are applicable retrospectively if the acts of abuse were committed even before the enactment of the DV Act.

Rajesh Sharma & Ors. v. State of U.P. & Anr. (2017 (3) KLT SN 85 (C.No.104) SC = AIR 2017 SC 3869);

The court issued guidelines to prevent the misuse of Section 498A of IPC, suggesting measures like family welfare committees to scrutinize complaints before making arrests.

An Analytical approch On The Law In Paper And Law In Practice

Post independence and after India became a signatory in CEDAW several laws for the protection of women have been enacted. The main among them which are frequently discussed and criticised are Section 125 Cr.P.C. now Section 144 BNSS, protection of women from Domestic Violence Act, Medical Termination of Pregnancy Act, Maternity Benefit Act, Indecent Representation of Women Prohibition Act, POSH Act etc. Maintenance is a social measure that was incorporated into the criminal procedure Code with legislative intent to prevent vagrancy. Section 125 - 128 Cr.P.C. dealt with maintenance provisions the same wordings and provisions are now incorporated in BNSS as Section 144 - 147. Section 125 Cr.P.C./Section 144 BNSS provides for maintenance to wife, children and aged parents unable to maintain themselves. The Apex Court in Rajnesh v. Neha & Anr.(2020 (6) KLT OnLine 1012 (SC) = 2020 (6) KHC 1 (SC)) has by its landmark Judgment declared that for all claims for maintenance under Cr.P.C., Personal Laws or Domestic Violence Act. The petitioner and the respondent are bound to file Assets and Liability Disclosure Affidavit. The BNSS which subsequently came up has not included the same in section 144 which deals with maintenance provision. Even though there has been orders issued for maintenance the execution of the same is not successful in many cases. The women are constrained to approach the Court again for receiving the amount allowed. The legal tangle and the expense are unbearable to many that the beneficial legislation formed for the benefit of women is in fact not effective in practice. In Australia, Canada, London, China the spousal support and child support are immediately provided on receiving a complaint of being deserted by the husband/ father. A Law/Provision equivalent to the same is a necessity to stop vagrancy.

Dowry Prohibition Act, the Act has been practically unsuccessful. The laws enforcement is not effective due to lack of awareness and societal pressure. The law does not provide penalties for failing to maintain lists of gifts exchanged during marriage. It is a known fact that dowry is prevalent to this day and even in a 100% literate State like Kerala the evil of dowry prevails. The Uthara case where a woman was killed by snake bite was a matter of huge discussion for some time in media but later the same old practice continues and there is no effort from legislation to eradicate the evil. The demand for dowry is by itself punishable (Section 4). Dowry however continues to be a pernicious social evil across socio-economic, religious, case and regional lines, and is often passed off as wedding gifts, which are exempted from the Act. This has led to many issues when the couple divorce and keep fighting for return of the gold and money entrusted. The way to prevent disputes is to fully and through the mechanism of law eradicate giving gift at the time of marriage or on the contrary create law to register the details of gifts provided at the time of registering the marriage.

Medical Termination of Pregnancy Act: - A beneficial legislation formed with intends to protect the woman to terminate the unwanted pregnancy within 20 weeks of pregnancy. However, the Act gives decision making power to medical professionals rather than the pregnant women. On many occasions the pregnant person’s autonomy is replaced by subjective determination of doctors and judges.  In number of cases, the Apex Court and almost all the High Court in India had to come up with matters were the women has been denied the right to terminate pregnancy and in many cases it is at the intervention of the Courts that the women have been given relief.

In A v. Chhattisgarh, ((2016)168 AIC 373); the question considered was, Right of women, especially marginalized women to access safe and timely abortion services. The petitioner was an Adivasi girl who became pregnant as result of rape. She had approached the District Hospital to terminate her pregnancy as she was well within the gestational limit of 12 weeks under the MTP Act. She was then referred to the Chhattisgarh Institute of Medical Sciences and asked to produce Medico-legal documents including the copy of the FIR, all which resulted in her being made to run from pillar to post and eventually being denied access to abortion services. The petitioner had then moved a petition before the High Court for a direction to facilitate the termination of her pregnancy. The Court took note of the circumstances of the Petitioner and applied the principle of best interest by relying on the decision in Suchita Srivastava v. Chandigarh Administration. Importantly, the Court noted that its decision should be guided by the interests of the survivor alone and not those of guardians or society in general. The social and legal barriers to accessing safe abortion and reproductive healthcare services, especially for marginalised women. The Petitioner here had to go all the way to the High Court to seek a legal abortion only due to failing to provide her the abortion before the legal limit elapsed.

If not for the intervention of High Court the victim would not have got relief. similarly the High Court of Kerala in 2025 KHC Online 209 issued guidelines that Doctors must mandatorily preserve the foetus of minor victims and in order to destruct foetus Doctor should seek written permission from the investigation officer or District Police Superintendent. The lack of rules to preserve the foetus was seriously look into by the High Court and the State and Central Legislature were requested to consider to make appropriate legislation or to amend the existing legislation to incorporate a provision, mandating preservation of foetus.

Protection of Women from Domestic Violence Act: - One of the major enactment formed for the purpose of protecting women from domestic violence has been a matter of dispute before the Courts on several litigations though it is a beneficial legislation the legislature has not made any provisions for the execution of the Orders made by the Magistrate under the Act. The petitioner submits that the enforceability of the orders under the Act has not been provided in the Act. Section 31 provides as under;

i. Penalty for breach of protection order by respondent- (1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a team which may be extent to one year, or with fine which may extend to twenty thousand rupees, or with both.

(2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused.

(3) While framing charges under sub-section (1), the Magistrate may also frame charges under section 498A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.

The above provision can be evoked only when there is a breach of interim protection order or protection order. Section 37 has provided power to the Central Government to make rules. The Act provides for appointing a protection officer and other officers subordinate to him for making the order under the act effective. However, the protection officers appointed under the act are never notified in the conspicuous part of the court rooms or police stations or in any other public domain that the victims rarely get help and aid of the police or protection officer under the act. The Department of Women and Ministry of Child welfare has not been adequately taking any steps to redress the grievance. The absence of proper legislation is now a matter under consideration before the Kerala High Court in WP (Crl.) No. 376/2024 was the Union Government has been impleaded.

POSH Act:-

The Act, which was passed in 2013, represented a major advancement in the creation of respectful and safe work environments for women. But in practice, there are a number of flaws that undermine its efficacy.

The Act lacks proper implementation modes, how to deal on the gaps in reporting, ineffective internal complaints committee., poor understanding of the provisions of law, lack of any centralised Sexual harassment date, its effectiveness in Private sector.  The Government Organization is limited 97% women are working in unorganised sector the Act lack to provide effective implementation modes for formation ICC or LCC.  Further the 1^st attempt provided under the Act is conciliation which may result in pressure tactic on the victim. Further the act focuses only on sexual harassment and ignores other type of workplace abuse. The act prohibit anonymous complaint and does not include transgender. 

In Aurelino Fermandes v. State of Goa (2023 (5) KLT SN 6 (C.No.2) SC = 2023 KLT OnLine 1460 (SC):the Apex courtobserved that even after a decade of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) being formulated, its implementation and enforcement is still inadequate.

Immoral Traffic Prevention Act

While the Act does not explicitly criminalize prostitution itself, it primarily targets the commercial aspects of sex work, such as organized trafficking and brothel operations. 

The Immoral Traffic (Prevention) Act has undergone amendments to strengthen its provisions and address evolving challenges related to human trafficking. However, its potential for misuse, particularly concerning the criminalization of sex workers themselves, and the need for a more comprehensive approach that prioritizes the rights and protection of victims are not considered while legislating.

Protection of Child Marriage Act

Prohibition of Child Marriage Act was introduced to prevent the girl child from being given away in marriage against her will. The child marriage was considered as evil as it prevented the girl children further education, affected their health, caste responsibilities at a tender age that the enactment was made to abolish child marriage and to uplift women. However in many communities in the name of betrothal, child marriage was prevalent. The Apex Court had strongly come down in the recent petition Society for Enlightenment and Voluntary Action v. Union of India on the act of community driven strategies to overcome the legislative intend by giving away the minor in marriage in the pretext of child betrothals. The Apex Court laid down guidelines and specifically noted that child marriage prohibition officers should be appointed under Section 16 of the Prohibition of Child Marriage Act and the officers so appointed were directed to upload quarterly reports on the outcome of investigation and steps to prevent child marriages. The Apex Court has also directed establishing special child marriage prohibition units being established in each State. The Kerala High Court  Suo Moto Proceedings v. State of Kerala and others.(W.P. (C) 25285/16 = = 2025 KLT OnLine 1430)) has directed the State to launch Awareness programs to combat child marriage in tribal communities of Waynad by its Judgement dated 3rd March 2025.

Conclusion

Internationally, India has made several commitments to gender equality. The country ratified the Convention on the Elimination of Discrimination Against Women (CEDAW) in 1993 and has supported various United Nations initiatives, including sending all-women peacekeeping contingents.

India needs an approach that goes beyond policy formulation to actual implementation, enforcement, and societal change to address these issues. This includes strengthening domestic policies by ensuring stricter enforcement of existing laws and programs and introducing new measures to protect women’s rights and promote gender equality in all spheres of life. Further, India must increase the representation of women in political and decision-making positions to ensure women’s perspectives and realities are properly addressed. It is time for India to translate its commitments into actions and lead by example in the quest for gender equality.

Quote the words of Justice B.V. Nagarathna and Justice N. Kotiswar Singh

“Much like ‘it is not enough to proudly state that women officers are allowed to serve the nation in the Armed Forces’, it is not enough to find comfort solely in the growing number of female judicial officers if we are unable to secure for them a sensitive work environment and guidance.

The legislature and policy framers of India have made multiple laws, rules and regulations ensuring rights of women but proving ineffective because all are limited in form of ‘Act’ instead of ‘Action’, that is the reason why Indian women are mistreated, being harassed physically and mentally. Incidents of violations of women’s human rights raise some thought-provoking questions before us: how special rights given to women are helpful to them? What are the benefits of enacting such women-oriented legislations? Are they really helping them? Will the women ever get an equal status to men one day? All these questions are still unanswered. There is still long way to go to answer such questions. We need to rethink in this regard and start working to make a safe and better environment for women. It’s time that the nation starts to lay the road for women to walk rather than drawing them in papers

I conclude with the words of Swami Vivekananda

“There is no chance for the welfare of the world unless the condition of women is improved. It is not possible for a bird to fly on only one wing.”

“All nations have attained greatness by paying proper respect to women. That country and that nation which do not respect women have never become great, nor will ever be in future.”

More is Not Merrier

(K. Ramakumar, Senior Advocate, High Court of Kerala)
E-mail : ramakumarassociates@gmail.com    Ph.: 0484 - 2376428

The proposal recently mooted at high levels to appoint ad hoc Judges in the name of wiping out arrears has evoked a mixed response and even flak. Many criticize it as the renewed attempts to coddle retired Judges who are some of the luckiest in a country with vast unemployment among the youth, already enjoying handsome pension, perquisites, commissions, arbitrations, committees etc. etc. That is the one category which by any standards do not deserve special consideration in a country where youth organizations violently protest against enhancement of the retirement age, and large segment of people still live below the poverty line.

Even otherwise, numbers do not improve the disposal of cases in higher courts. What is really needed is commitment and a conscientious approach to the solemn duties owed by justice dispensers to the common people. Second appeals have a span of life of not less than 15 years in our High Court. First appeals also live likewise. Criminal appeals are taken up ordinarily only after 10 years of its filing. Writ petitions have a life of about 12 years while Criminal MCs not less than 10. Does not this sound disquieting if not alarming?

The Supreme Court is functioning with almost the full strength. The High Court of Kerala is also not short of Judges excepting the usual retirement vacancies. Yet the arrears are alarming. What is required to reduce the arrears is a conscious attempt to address the real problem, identify and eliminate infructuous cases, easily disposable cases and give priority to cases which need immediate attention. This is not a new suggestion but never attempted to by those in charge of judiciary, probably not entirely attributable as a fault. With our extremely equipped, experienced and hardworking Judges, how much time is needed to answer substantial questions of law arising in a second appeal? Some of the Judges currently sitting in second appeals are doing fine. How long a Judge needs time to dispose of an application under Section 482 of the (former) Code of Criminal Procedure, the parameters of each and every aspect of it settled by series of Supreme Court decisions? How much time our eminent Judges need to sit in judgment in a civil case adjudicating facts and most often no law at all?

Yet the amount of arrears is frightening. Civil cases do not get media publicity, not even as much as an application for pre arrest bail. Celebrities are not ordinarily involved in civil disputes. Civil matters are the Cindrellas in our litigative system. This should end. The High Court being the highest court of the state is expected to be a seat of excellence. Necessarily pleadings shall be precise, questions of law formulated in every lis and answers provided by our highly equipped Judges expeditiously.

Why then still so much disgusting delay, driving away common place litigants from judicial institutions. Nobody takes pleasure in litigation excepting those who want to settle scores with their adversaries. Litigation is an expensive affair, time consuming, bristled with anxiety,uncertainty and inordinate delay. No ordinary citizen therefore is delighted to enter a court room with his grievance however genuine it is. He tries to avoid as much as possible a litigation and reconciles himself to his ill fate.

It is not that difficult to devise methods to decide appeals raising questions of law alone. All that is needed is to apply principles evolved by the Apex Court and quick delivery should follow. It is true that some lawyers give undue accent to irrelevant and unnecessary facts. This shall not be permitted and should be firmly dealt with. Experience clearly evidences that increase in number is no solution. It on the other hand becomes a burden on the exchequer of a state already in the red in its finances. Numbers without quality, commitment and competence is no substitute to eliminate the ever increasing arrears in our courts of law. Wiping out the arrears virtually means wiping the tears of the lugubrious litigants. More therefore is not merrier.