Women and the Law - Govindh K. Bharathan




          The advance of a society is measured in terms of the amount of gross physical effort that is necessary to fulfill any particular task.  For instance, ploughing used to be a heavy physical chore till agricultural machines were invented which reduced it to a skilled occupation, which required no actual physical effort.  Thus the physically weak woman and the physically strong man are at the same level where operation of an agricultural machine is concerned. 


          Today, with the invention of the computer and the development of the concept of fingertip control for all activities, the difference between the sexes as far as work is concerned is reduced to nil.  All that remains is the mental block in the individual psyche.  Society expects men and women to fit into well worn cliché ridden niches.  This has to be eradicated.  


          The role of women in ancient India was unique.  The Vedas were traditionally attributed to women, and in the vedic age, and later, women were treated as equal to men in all spheres of life.  But with the advent of the waves of invasion from alien cultures, women were driven from the forefront of life to the seclusion of a cloistered existence.  Thus started the tragedy of Indian womanhood.  Today, inspite of the tremendous advances made by the nation in almost all fields, women still linger far behind, and are exploited and ill treated in all spheres of life. 


          Nowhere else in the world is this dichotomy more evident.  In India, women were elevated to the pedestral of Universal Motherhood.   Saints and sages sang of their glory and Poets praised their unique qualities.  The concept that there was something beyond the Atom, and that this was pure energy took some time to percolate into the western scientific mind.  But Ancient India always knew this, and had even given this energy principle a form: that of the Mother in her fierce and potent aspect.  In the Devi Mahathmyam, the Devi is praised thus:


Ya Devi Sarva Bhutheshu Shakti Roopena Samsthitha

Namasthsyae Namasthsyae Namasthasyae Namo Namah:



In the Soundarya Lahiri, Adi Shankara says:


Brahma takes a tiny speck of dust from your feet,

and creates the world in its perfection, which

Vishnu supports on his thousand heads and which

Shiva uses his Samhara Shakti and destroys and

apply he has all over his forehead. 



          But this glory attributed to womanhood in India thought and poetry did not help the deterioration of the status of women in the country.  Indian women are still among the most down trodden in the world. 


          In Kautilyas Arthasasthra, it is stated with striking wisdom that a Monarch can claim to be effectively ruling his domain only when a beautiful women, bedecked in jeweled splendor can safely walk the streets of the kingdom at midnight, alone, Applying, this principle, to our country, state of anarchy prevalent here can easily be discerned,


          We are still endlessly following the ancient antiquated and anachronistic Anglo Saxon oriented jurisprudence, in an age where even the countries of its origin are fast modernizing their laws.  The British had a vested interest in prescribing separate laws for separate communities.  They wanted the differences between these religious groups to remain intact, and become more and more polarized, to prevent a national concept from emerging in the country as a whole. 


          The furore about the Shariat came into prominence only after the Shah Banos case, reported in AIR 1985 SC 945.  The question was whether the personal laws of a community held precedence over the Criminal Procedure Code, which applied to all citizens in the country.  The Supreme Court came down with a heavy hand on the antiquated notion that the personal laws of a community were inviolable, and where to have precedence over the general laws of the land.  The uproar which followed this judgement cannot but lead to the conclusion that we suffer from religious myopia.  Religions are aimed at helping man to rise to greater heights of aspiration and achievement, over his gross materialistic nature levels.  If any Religion has the effect of discriminating against any segment of society, then its is the religion which should be basically altered and moulded to the needs of society and social consciousness.  Too long have we laboured under outdated creeds and antediluvian concepts. 


          Again, very often, sublime concepts when translated into the gross reality of words attain totally alien connotations.  “Na Stree Swanthanthram arhathi”.  said Manu.  But this concept is torn out of context and misquoted.  There is also a sublime concept in the Hindu ethos that all living beings are female, and the Lord alone is the male, thereby indicating that male and female are only terms which describe particular characteristics, and not sex.


          As a result, Modern Hindu Law is the Englishman’s version of Manusmrithi and the Shariat is also a product of this unfortunate Anglo Saxon preoccupation with separatism.  But today we must tear away the veil of obscuranty and expose the evils of this antiquated approach to life and liberty and rejenuate our woman. No nation can march to greater glory with one leg in a crutch. 


          Though out the world, women have been discriminated against as far as the law is concerned.  In the United States, it took a hundred years of legal history to remedy the situation.  From the position adopted in Bradwell Vs.  State of Illanois 16 Wall 131 (1873), where a Chicago woman challenged the State’s refusal to allow her to practice law, Justice Joseph Bradley of the United States Supreme Court held as follows: 


      "Man is, or should be, womans protector and defender.  The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.  The constitution of the family organisation, which is founded in divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood". 


  However, in Fronterio Vs. Richardson 411 U.S 677 (1973) a female Air Force Officer sought increased benefits for her husband as a dependent.  This was refused, and in Appeal, Justice William J. Brennan Jr. Observed:



  “….gender- based classifications, like distinctions based onrace and alienage, were inherently suspect’.


He further said thus:


  “As a result, statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members.”


          One of the leading decisions in the British courts in this field was Naggle Vs. Feilden 1966 (1) AER 789.  In that case, a woman trainer was refused licence by the Jockey Club. On appeal, Lord Denning said:



  The practice is so uniform that it amounts to an unwritten rule.  The only way she can get her head lad to apply.  The licence is granted to him, not to her.  It seems to me that this unwritten rule may well be said to be arbitrary and capricious.  It is not as if the training of horses could be regarded as an unsuitable occupation for a woman, like that of a jockey or speedway-rider.  It is an occupation in which women can and do engage most successfully. 

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