DOWRY PROHIBITION ACT, 96 Existing Provisions Amendment proposed by NCW Remarks The offence under the Act is treated as an offence against individual women. S. does not prescribe the sentence for the offence, but only provides the minimum sentence. Not only taking but also giving of dowry is an offence. Offences under the Act are treated as cognizable offences only in certain limited purposes. Proposed amendments by Government Restriction on marriage expenses not to exceed Rs.5,000/- or % of the annual income of the bride s parents.. For a more effective implementation it is desirable to make dowry offences as against the State. Modification of S. defining Dowry. Ss. & 4 of the Act (being aggravated forms of the offence related to dowry) to be removed from the Act and included in IPC. Substitution of S.5 providing for a list of presents given to a bride or bridegroom at the time of marriage. Ss. 7 & 8 of the Act to be omitted. S. 8A of the Act to be removed and included in the Evidence Act. Persons giving dowry are victims and hence it is not fair to punish them Persons anticipating in dowry negotiations should be made liable along with persons taking or demanding dowry. The offence should made cognizable for all purposes. Substitution of S.7 so as to remove the application of Chapter XXXV of the Cr.P.C, Modification of S.8B with respect to Dowry Prohibition Officers. Redrafting of Sub-Section ( ) of S.9 on the following lines:- In particular and without prejudice to the generality Indian Penal Code. ( a ).Substitution of Explanation to sub-section () of Section 04B defining Dowry on the following lines: Explanation: In this section and section 498B, Dowry means any property or valuable security given or agreed to be given either directly or indirectly, by the bride or any person related to her to the bridegroom or any person related to him at, before any time after the marriage in connection with, or as a consequence of, the marriage. Exception Nothing in the Explanation shall apply to the presents which are given at the time of marriage to the bridegroom (without any demand having been made in that behalf): Provided that such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom or on whose behalf, such presents are given. Modification in sub-section ( ) of Section 498 A: In sub-section ( ) for the words a term which shall not be less than seven years, but which may extend to imprisonment for term which shall not be less than seven years but which may extend to ten years shall be substituted. ()
Existing Provisions Amendment proposed by NCW of the foregoing power, such rules may provide for the better coordination of policy and action with respect to the administration of the Act. Recommendations made in the National Conference of Dowry Prohibition Officer held on..004.. Definition of dowry needs to be amended: i. The giving of dowry as well as taking of dowry is an offence but no one has been penalized till date for giving dowry. ii. The words in connection with marriage at the time of marriage, before marriage or any time subsequent thereto need clarification. There is confusion whether a demand of money followed by threat constitutes dowry and as to which demand would be treated as in connection with marriage. (Daljeet Singh V. State of Punjab, G.A. Mohammad Moideen V. State of Madras and Elango V. State of Madras).. Though list of gifts is mandatory and is to be signed by both the families but it is generally not Remarks In Chapter XXA - ( a ) Substitution of the heading by Of offences against women (b) Insertion of 498B prescribing punishment in dowry offences. The proviso to the section empowers the courts to give lesser punishment for adequate and special reasons. Omit the qualifying clause and the word cognizable alone be retained in S.498. S. 498A to be amended to enhance the punishment from to 7 years. Code of Criminal Procedure Immediately before S. 499A in the First Schedule substitution of the Chapter heading by Of offences against women. Amendment of the First Schedule making necessary entries after S. 498A i.e. inserting S 498A prescribing Taking, demanding or abetting to take dowry as a Cognizable and Nonbailable offence punishable with imprisonment for not less than 5 year which may extend to 0 years and fine not less than 5,000 rupees or the amount of value of the dowry, whichever is more and empowering the CJM or CMM to take cognizance of the offence. In the First Schedule, against section 498A. in Col.4, omit the qualifying clause and the word Cognizable alone be retained. ()
Existing Provisions Amendment proposed by NCW adhered to. There must be stringent provision in the law so that this rule is complied with and in case of failure visited by penal sanction. Furthermore, the parties must sign the list in the presence of a DPO. This would further authenticate the list.. Provisions should be made to make registration of marriage compulsory as in the case of births and death. This will enable the investigating authorities/personnel to deal with the cases more effectively. 4. The practice of giving additional charge of Dowry Prohibition Officer (DPO) to a public servant must be discontinued forthwith. Person should be appointed directly as DPO to deal exclusively with dowry related crimes/ offences. 5. DPOs must be invested with wider powers of investigation to make the role of investigation more effective. DPOs must be urged to play a proactive role and they must be given powers to take suo moto cognizance of dowry related offences. 6. If NGOs are to be appointed as DPOs they should be conferred statutory status under the Dowry Prohibition Act. Consequential amendments of S04 IPC In the First Schedule, Col., the existing entry be substituted by imprisonment for life or imprisonment for a term not less than 7 years but which may extend 0 years. 4.Omit S. 98A. Remarks Amending S.9 to cast a duty on the public to give information as to a dowry offence. In Clause ( v ), for the word and figures, and 04, 04 and 04B shall be substituted. After Clause, ( xii )insertion of the following: Section 498B (that is offences relating to dowry). Indian Evidence Act - Insertion of S.AA. Burden of proof lies with the person charged with S498 IPC (Dowry Offence). : (Cruelty to women is taking serious dimensions and hence punishment to be enhanced. Compulsory registration of marriage and the list of gifts which may be given to the girl be registered. Amend the Hindu Marriage Act to make registration of marriage under that Act compulsory. ()
Existing Provisions Amendment proposed by NCW 7. Police/Crime Against Women Cell should not directly deal with dowry related complaints received / filed with them. Any investigation concerning the same should be done solely by the DPOs. 8. As per the directions of the Hon ble Supreme Court all states must take immediate steps for appointment of DPOs with defined powers. 9. All states must immediately comply with the Supreme Court directions and frame rules for appointment and powers of DPOs. 0. In case there is a delay in the appointment of DPOs as suggested above the Police Personnel dealing with dowry case should be sensitized and given training to deal with such sensitive cases.. The law must provide sufficient safeguards so that the DP Act is not used by either of the party for mere blackmailing and bargaining. It is seen that the gifts given happily in the marriage remain gifts only as long as the going is smooth. The moment the relationship turns sour these very gifts become dowry and a bone of contention. All kinds of allegations are hurled against each Remarks Provide tax exemption on gifts to facilitate parents to settle property by way of gifts openly to the girls. Marriage expenses in no case to exceed 0 % of the annual income of the bridge s parents or guardians. Greater emphasis should be placed on the proper and strict implementation of the provision relating to Dowry Prohibition Officers and Advisory Boards by appoint full time officers who shall be accountable to the Advisory Board. (4)
Existing Provisions Amendment proposed by NCW other and the same becomes a police case. Quite often even before the investigation starts, the parties compromise making a mockery of the whole system. To effectively deal with this kind of situation a system should be evolved in that complaint must first be registered with a NGO and only after its investigating as to genuineness of the complaint should it be referred to the DPO concerned for further action in the matter.. Dowry related cases must be adjudicated expeditiously to avoid further harassment of the woman.. Instead of the traditional gifts as is being given now the parents of the girl could give a share of their property which belongs to her. 4. Apart from the share of property which she gets from her parents she must also be given a right to residence/share in the matrimonial home so that the husband/in-laws do not ill-treat her out on flimsy grounds. 5. Parents should be coerced to change their mindset that daughters are PARAYA DHAN. The idea that a daughter is a daughter throughout her life needs to be instilled. Media should play Remarks (5)
Existing Provisions Amendment proposed by NCW a balanced and responsible role. Instead of sensationalising this kind of sensitive issues they should be urged to play a constructive role to build up a better society. Recommendations made in the National Workshop on Laws concerning Crime against Women - Strategies and Amendments (Part-I) held on..004. Application of extortion u/s 8/ 84 on extortion if intentionally puts any person in fear of any injury to that person and then dishonestly induces extortions years Dowry can be included.. Preparation of the list of presents received at the time of marriage should be mandatory. NCW has already made recommendations to the Govt. that Registration of Marriage should be made compulsory and the list of presents received be signed by both parties and should be filed at the time of registration of marriage.. NGOs should intervene more effectively and propagate against Dowry. 4. Media s role should be constant and consistent. 5. Awareness should be created that both the giver and taker of dowry are liable for prosecution. Remarks (6)
Existing Provisions Amendment proposed by NCW 6. Legal Awareness Programmes for women should be given more impetus. 7. Awareness and Education and better implementation of legal provisions can help; boys families to develop proper attitudes. 8. Empowerment of Women work opportunity share in property may help. 9. Public acclaim of families through awards and publicity for eliminating the practice of dowry. 0. Dowry should be treated as a kind of torture and violence that leaves scars on the minds and physique of the girl and her parents/ guardians. Observations. Social Status Dowry seen as a status symbol to be discouraged. Remarks (7)
COMMISSION OF SATI (PREVENTION) ACT 987 Existing Provisions Preamble Definition S. S.4 Long title S. ( i ) S. (i) (a) S. (i) (d) S.. (i) (e) S. () Part II Ss. 5 Part III Heading Part III S.6 () S.6 () S.8 () S.8() Part IV (Ss. 9 4) Part V (Ss.6 7) Suggested Amendments by NCW Besides Government proposals, NCW recommended: Substitution of title An Act to provide for additional, ancillary or incidental matters connected with the prevention of Sati murder. Preamble omitted. In S. ( ) for Commission of Sati (Prevention) Act. Commission of Sati Murder (Prevention) Additional Provisions Act to be substituted. Omit S. () (a). Substitution of S. () (d) to define court to mean a District and Sessions Court. Substitution of Sati murder for Sati in S. () (). In S. ( ) as in the code and or the code to be omitted. Part II (Ss. - 5) to be omitted. Part III; for Sati the words Sati murder to be substituted. In S. 6 () any abetment thereof to be omitted. In S. 6 () for any other provision of this Act, the words or any other law to be substituted. Remarks (8)
Existing Provisions Suggested Amendments by NCW Remarks S.8 S.9 Indian Penal Code S.0 Criminal Procedure Code S.9 () (v) Evidence Act Ss, A. Proposed Amendments by Government In the Preamble nowhere enjoined by religions to be omitted. Definition of Sati to include putting an end, in whatever manner, the life of the helpless women. S. to be omitted as attempt to commit Sati not an offence. S.4 Sati to be Sati murder. Emphasis on preventive measures. In S.8 (), for words any offence under this Act, Sati murder to be substituted. S.8 ( ) to be substituted to read as every Collector or District Magistrate acting under sub-section () shall report seizure to the Court and shall await the orders of such court for the disposal of the same. Part IV (Ss. 9-4) to be omitted. Part V (Ss. 6 & 7) to be omitted. In S. 8, for sub-section ( ) of S.4, the words S.0A of the Indian Penal Code to be substituted. In S. 8 for Sati, wherever it occurs, Sati murder to be substituted. S. 9 of the Commission of Sati Murder (Prevention) Additional provisions Act, 987, to be amended as follows: Amendment of Act 4 of 95 In the Representation of the People Act, 95 (4 of 95):- In section 8, in sub-section (), for the second proviso, the following proviso shall be substituted, namely: Provided further that a person convicted by a Court for the contravention of section 0A and section 0B of the Indian Penal code (45 of 860) or any of the provisions of the Commission of Sati Murder (Prevention) Additional Provisions Act, 987 shall be disqualified from the date of such conviction and shall continue (9)
Existing Provisions Suggested Amendments by NCW to be so disqualified for a further period of 5 years since his release. In S. for clause (B), the following clause to be substituted The propagation of the practice or the commission of sati murder or its glorification by a candidate or his agent or any other person, with the consent of the candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting election of any candidate. Explanation _ For the purpose of this, Sati murder and glorification shall have the meanings respectively assigned to them in sections 0A of the Indian Penal Code (45 of 860). Remarks (0)
CODE OF CRIMINAL PROCEDURE, 97 (Cognizance of offence of Bigamous Marriage) Existing Provisions S. 98 of the Code of Criminal Procedure 97 Proposed Amendments by Government The existing provisions bar the criminal court from taking cognizance of an offence under section 494 or section 495 of the Indian Penal code except on the complaint of the wife or a complain made, on her behalf by the specified relatives of the wife. The question is whether this restriction should be removed. And if the affected women does not make a complaint whether any women s welfare organization or any legal aid cell or any one else should have the right to make a complaint. Suggested Amendments by NCW Restriction on the filing of a complaint u/s 98 () should be removed in respect of Ss. 494 and 495 of the IPC. Omitting Clause ( c ) to the proviso to sub-section I () of S. 98. The amendment may be as follows: In sub-section () of S. 98, Cr. P.C. (i) after the words and figures under Chapter XX the words and figures other than sections 494 and 495 shall be inserted. ii) Clause (c) of the proviso shall be omitted. Normally women (wives) in India do not make any such complaints for a variety of reasons. ()
INDIAN PENAL CODE Existing Provisions Ss. 7 and 7 of the IPC. Proposed Amendments by Government Expressed concern on reported sale of young girls in the guise of marriage. Suggested Amendments by NCW Ss. 7 and 7 of the IPC prohibits sale, letting on hire or otherwise disposing of a child or, as the case may be, buying, hiring or otherwise obtaining possession of, such child. However, these two sections are confined to transactions for specific purposes, i.e. for prostitution or illicit intercourse with any person or for any unlawful and immoral purpose. The theme of discussion on IPC was sexual assault on women in the context of existing legal provisions of IPC, 860 and to suggest reform of these provisions. The following points were raised and suggestion made in the National Workshop on Laws concerning Crime Against Women - Strategies and Amendments: - Shortcomings in the existing provisions of IPC. The biggest difficulty with law on Rape u/s 75 and unnatural offences u/s 77 is that they are limited to penetrative abuse.. Section 75 does not recognize rape within a marriage unless women is below the age of 5 or at a time when women is living separate from him under a legal decree of separation or custom (76-A). Consequential Amendments Suggested in other Statutes / Remarks Indian Penal Code. Amendment to S. 59 to make appropriate change in the definition of kidnapping.. Amendment of S.6 so as to remove the differentiation of age of male and female child; to provide for definition of consent and to omit the exception. The fact of sale of minor girls was brought to light recently by Ameena s case. ()
Existing Provisions Suggested Amendments by NCW. The term rape should be replaced by Sexual assault. Sexual Violence needs to be defined in a broader term of Sexual assault as it implies a widely expansive term in-corporating all intentions, words, gestures and acts of sexual but unwanted nature ranging from exhibitionism to penetration that causes a person to feel uncomfortable, humiliated, frightened or intimidated; and against women constitute any conduct of sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of a women. 4. There are wide range of sexual violence that do not involve penile vaginal penetration like child sexual abuse, criminal intimidation and threats, sexual harassment, forced prostitution and trafficking and restrictive understanding could under count the number of victims. 5. Any reform of law on assault must consider impact and requirement of law on separate category of minor girls. 6. Section 77 IPC punishes carnal intercourse against the order of nature not covered by S. 75 and it can provide a remedy for child abuse cases for girls and for Consequential Amendments Suggested in other Statutes / Remarks ()
Existing Provisions Suggested Amendments by NCW women whose abuse is not covered by S 75. 7. Section 54 IPC which punishes assault or criminal force upon a women with the intent to outrage her modesty can be used to punish non-consensual sex performed on young female. Modesty has not been defined though SC held in Rupan Bajaj case that ultimate test for ascertaining whether modesty has been outraged is if the action of the offender is such as could be perceived as one capable of shocking the decency of women. 8. Delay in Trial results in acquittal in most of the serious cases as delay gives opportunity to the accused to win over the witnesses. Need for change in Law. Penetration need not be a requirement for sexual assaults At present both Sections 75 and 77 IPC require penetration to constitute the offences and lack of visible marks of injury makes proof impossible this needs to be deleted and instead a graded and inclusive definition of sexual assault be introduced.. Sexual assault within marriage must be punished At present it is not punished except if the wife is below 5 years or during Consequential Amendments Suggested in other Statutes / Remarks (4)
Existing Provisions Suggested Amendments by NCW separation. - Deletion of exception to S 75 guilty be held accountable and not to be treated as a separate protected category.. Consensual Sex should be decriminalized the term u/s 75 with or without her consent may be removed from the clause. At the same time presumption of rape may be drawn in case of non-consensual sex among persons under 8 years of age. Procedures in Courts 4. Testimony of victim must be given adequate weight victim of rape is not an accomplice of crime and her testimony can be acted upon without corroboration in material particulars. Children can give evidence provided they can understand the questions and give rational answers. Unchastity of women does not make her open to any or every person to violate her person as and when he wishes and entitled for protection Section 55(4) therefore should be deleted. 5. Special procedure to protect and ensure the privacy of victim of assault In camera trials should be encouraged in the case of rape/sexual assault. Section 7 helps shield victims from publicity during and post trial anonymity is important. Child victim needs specially protected video conference a Consequential Amendments Suggested in other Statutes / Remarks (5)
Existing Provisions Suggested Amendments by NCW procedure established by law under Article of Constitution and does not violate the rights of accused. 6. All Assistance and legal representation to be given to the victims of sexual assault - by the legal and investigative machinery legal representation same person to look after complainants interest in the police station to the end of justice. 7. Legal assistance at the Police Station as the victim would be distressed police duty bound to inform victim her right to representation before any question asked if there is no lawyer list of advocates at the police station should be provided advocate shall be appointed by the court after application by police at the earliest in all rape trials anonymity must be maintained. A witness protection programme must be put in place to support during trial and prevent the perpetrator from getting to women and forcing her to withdraw her complaint. 8. Compensation for the victim - remedies to victims under general criminal and civil law Section 57 of CPC allows limited compensation to be recovered by victims of crime in a civil court in custodial rape, the state obligation to protect its citizens and state to pay compensation to victims of rape. Consequential Amendments Suggested in other Statutes / Remarks (6)
Existing Provisions Suggested Amendments by NCW There is a need for setting up of criminal injuries compensation board as High Courts possess powers u/s 48 of CPC to make any order, to prevent abuse of process of any court and to secure ends of any justice Thus there is a need for setting up of such a board. Other suggestions made at the workshop 9. Penetration need not be a requirement for sexual act and IPC should also provide for non-penetration abuse against women such as un-wanted touch. 0. Victim suffers adversely due to demand of proof of penetration.. The punishment for marital rape has to be enacted so that wife is not treated as property of husband.. Provisions used in Section 54 outraging the modesty is highly inadequate.. The evidence of children victims or witnesses wherever possible should be carried out in a more friendly atmospheres. 4. While referring to the case of rape of a nurse in Delhi Hospital who lost her eye and that of Anjani nurse from Bombay who was assaulted during rape leading to brain damage and is in coma, it was urged that the policy making body should decide why the death punishment be not given in such cases. Consequential Amendments Suggested in other Statutes / Remarks (7)
Existing Provisions Suggested Amendments by NCW 5. An NGO member is not being associated at the time of filing a complaint case of Rape in Police Station. 6. Although criminal board should be established in the directive principles of Article 8 (a), from 995 till date no board has worked at all. 7. Investigation are faulty as in Mattu Case, Judge said that though be was convinced he is guilty of rape because there is lack of evidence so acquitted. 8. Police personnel lack training and awareness to collect samples of semen, to detect injury and to investigate the rape. 9. Under the military law punishment is more severe for outraging the modesty i.e. 7 years whereas under the IPC it is years. Again the military trial takes place on day to day basis and is fast. Thus the Provisions under the military law are more stringent and implementation more efficient. Consequential Amendments Suggested in other Statutes / Remarks (8)
HINDU MARRIAGE ACT, 955 Existing Provisions Suggested Amendments by NCW S. 5 S. () (b) S.5 - One of the conditions specified in the section for a valid marriage is that neither party has been subject to recurrent attacks of insanity or epilepsy (Cl. (ii) (c ). - Effect to this provision read with S. ( ) (b) of the Act is that a marriage of an epileptic person becomes voidable and may be annulled at the option of the petitioner if it is proved that at the time of marriage the respondent was epileptic. It has been observed by psychiatrists and neurologists that some modern medical treatment can bring epilepsy under complete control and also prevent epileptic seizure in majority of the cases. Commission reiterated its recommendations to the Ministry of Law to consider the feasibility of omitting the words or epilepsy occurring in S.5 (ii) ( c ) of the Act. The tragic victims of this provision of law are mostly women. (9)
COMPULSORY REGISTRATION OF MARRIAGE No statue exists Existing Provisions Proposed Amendments by Government To introduce a legislation for compulsory registration of marriages (under consideration of the Government for more than 5 years) Bill (of 978) received with the reference. Suggested Amendments by NCW The Commission is of the view that for women registration of marriages is a critical issue and will help to prevent child marriages and to ensure minimum age of marriage; to ensure the requirement of consent of the bride to the marriage and to ensure prohibition against polygamy; - to ensure that prior wives receive notice of intended marriage. The NCW noticed certain lacunae in the Bill (of 978). Further, to achieve the objective of the Bill, it could be modeled on the provisions of the Parsee Marriage and Divorce Act, 96. To explore the possibility of amending the Births, Deaths and Marriages Registration Act, 886 in which provision exists for voluntary registration of all marriages. A suitable amendment to the Act along with a suitable amendment to the Hindu Marriage Act, 955 will serve the purpose. A pre-requisite is that the existing machinery for registration of births, deaths and marriages should be strengthened (financial implications may be well within reasonable limits.) (0)
EVE TEASING Existing Provisions Ss. 94 and 509 of the Indian Penal Code. A Bill on the same subject was earlier introduced and passed by the Rajya Sabha in 988. While pending before the Lok Sabha, due to dissolution of the Lok Sabha the Bill lapsed. Proposed Amendments by Government A proposal for the enactment of the Delhi Prohibition of Eve Teasing Bill, 99 received from the Ministry of Home Affairs (99). The proposal referred to the Commission in 99 contained the Delhi Eve Teasing Bill of 984 (which has been passed by the Delhi Metropolitan Council for adoption by Parliament. Suggested Amendments by NCW The short title and the enacting formula have to be suitably amended as the proposed Bill is being brought forward in 99. In view of the nature of the offence contemplated in the proposed Bill, the definition of man as suggested in clause (b) of the proposed legislation may be omitted. Clause of the proposed legislation of Eve-teasing appears to be only an amalgam of provisions of sections 94 and 509 of the IPC. The new legislation does not make any improvement but on the contrary appear to have diluted the punishment for the offence (vide clause 4 of the Bill). The lapsed Bill of 988 was better drafted than the Delhi Prohibition of Eve Teasing Bill of 984. Some of the voluntary organizations suggested that the expression Eve Teasing should be replaced by a more appropriate expression suitable for the Indian context. ()
THE CHILD MARRIAGE RESTRAINT ACT, 99 Existing Provisions Suggested Amendments by NCW The government should immediately appoint Child Marriage Prevention Officers. The punishment provided for, under Section, of the Child Marriage Restraint Act 99, should be amended so as to make the punishment more stringent. A new provision should be included in the Act to the effect that any marriage performed in contravention to the order made by the Child Marriage Prevention officer should be void. A new provision should be included in the Act for creating a penal obligation on every person present at a child marriage for objecting to or advising the person concerned against such marriage or reporting to the Child Marriage Prevention officer, of the solemnization of child marriage. Section 7 of the Act should be replaced by a provision for making all offence under the Act as cognizable without any qualifying clause. ()
THE MEDICAL TERMINATION OF PREGNANCY ACT, 97 Existing Provisions Suggested Amendments by NCW Section, clause (a) should be revised to broaden the definition of guardian to include an individual having the care of the person of a) a minor women, or b) a women of unsound mind. In Section, clause ( b ) of the Act, the definition of lunatic should be deleted. Section, clause (), Explanation, of the Act should be amended to include offences under sections 76A to 76D of IPC as within its scope. Section, clause ( 4 ) of the Act should be revised so as to make it clear that the consent of the women concerned, must be obtained in every case. Section 5, clause ( ) of the Act should be amended so as to indicate clearly which particular offence is constituted if a person who is not a registered medical practitioner performs abortion. ()
THE INDIAN SUCCESSION ACT, 95 Existing Provisions Section 5 : Domicile Acquired by woman on marriage - By marriage a woman acquired the domicile of her husband, if she had not the same domicile before. Section 6: Wife s domicile during marriage - A wife s domicile during her marriage follows the domicile of her husband. Exception - The wife s domicile no longer follows that of her husband if they are separated by the sentence of a competent Court, or if the husband is undergoing a sentence of transportation. Section : Settlement of minor s property in contemplation of marriage- ) The property of a minor may be settled in contemplation of marriage, provided the settlement is made by minor with the approbation of the minor s father, or, if the father is dead or absent from India, with the approbation of the High Court. ) Nothing in this section or in section shall apply to any will made or intestacy occurring before the first day of January, 866, or to intestate or testamentary succession to the property of any Hindu, Muhammadan, Buddhist, Sikh or Jaina. Section 60: Testamentary guardian - A father, whatever his age may be, may Suggested Amendments by NCW Section 5 and 6 of the Act to be amended so as to remove the compulsory linking up of the wife s domicile with that of the husband. The women s domicile should be left to be determined by the same rules as governing the domicile of men. Where the spouse of the deceased is one of the applicants, her application shall not be rejected without sufficient cause. (4)
Existing Provisions by will appoint a guardian or guardians for his child during minority Section 4: Proof of representative title a condition precedent to recovery through the Courts of debts from debtors of deceased person ) No Court shall a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, or b) proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt, except on the production, by the person so claiming of - i) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased, or ii) a certificate granted under section or section of the Administrator - General s Act, 9 ( of 9), and having the debt mentioned therein, or iii) a succession certificate granted under Part X and having the debt specified therein, or iv) a certificate granted under the Succession certificate Act, 889 ( 7 of 889), or v) a certificate granted under Bombay Regulation No. VIII of 87, and, if granted after the first day of May, 889 having the debt specified therein. ) The word debt in sub-section ) includes any debt except rent, Suggested Amendment by NCW (5)
Existing Provisions revenue or profits payable in respect of land used for agricultural purposes. Section 8: To whom administration may be granted, where deceased is a Hindu;, Muhammadan, Buddhist, Sikh, Jaina or exempted person - ) If the deceased has died intestate and was a Hindu;, Mohammadan, Buddhist, Sikh or Jaina or an exempted person, administration of his estate may be granted to any person who, according to the rules for the distribution of the estate applicable in the case of such deceased, would be entitled to the whole or any part of such deceased s estate. ) When several such person apply for such administration, it shall be in the discretion of th Court to grant it to any one or more of them. ) When no such person applies, it may be granted to a creditor of the deceased. Section 9: Where deceased is not a Section 9 Hindu, Muhammadan, Buddhist, Sikh, Jaina or exempted person - a)., b)., c) If there is no widow, or if the Court sees cause to exclude the widow, it shall commit the administration to the person or persons who would be beneficially entitled to the estate according to the rules for the distribution of an intestate s estate. d)., e).., f).., g).. Suggested Amendment by NCW (6)
THE MINIMUM WAGE ACT, 948 Existing Provisions Suggested Amendments by NCW. New sub-clause in Section 9 () as: No less than 0 % of the persons appointed as Inspectors under this section shall be women.. New Section 9A to read as : 9A In addition to the Inspectors so appointed under the Minimum Wages Act, 948, the following shall be deemed to have been appointed Inspectors under this Act i) Inspectors appointed under different labour laws and ii) Sarpanch of a village. (7)
THE FACTORIES ACT, 948 Existing Provisions Suggested Amendments by NCW. Section : Work on or near machinery in motion for the words No person below the age of 8 years, or a pregnant women or a person with disabilities shall be substituted. Section 7: Prohibition of employment of women and children near cotton openers, the following Section will be substituted - No person below the age of 8 years, or a pregnant women or a person with disabilities shall be employed in any part of a factory for pressing cotton in which a cottonopener is at work.. Section 4: Facilities for storing and drying clothing, the following section be substituted The State Government may, in respect of any factory or class or description of factories, make rules requiring the provision therein of suitable and separate places for male and female workers to keep clothings not worn during working hours and to dry the clothing. 4. Section 46: Canteens A Proviso after clause ( d ) of sub-section ( ) of Section 46 of the Act as follows - Provided that there shall be at least one women (worker) on the Canteen Managing Committee. 5. Amendments in Section 47: Shelters, rest rooms and lunch rooms (8)
Existing Provisions Suggested Amendment by NCW for the words..adequate and suitable shelters or rest-rooms and a suitable lunch room.. the words.adequate, suitable and separate shelters or rest-rooms for male and female workers and a suitable lunch room shall be substituted. 6. Section 48: Creches To substitute sub-section ( ) of Section 48 and clause ( b ) of sub-section of Section 48 of the Act as follows - 48 () In every factory wherein more than 0 workers are ordinarily employed, there shall be provided and maintained a suitable room for the use of children under the age of 6 years of such workers. For clause ( b ) of sub-section ( ) of Section 48 the following clause shall be substituted - 48()(b) requiring the provisions in factories to which the section applies of additional facilities for the care of such children, including suitable provisions for facilities for washing and changing their clothing. 7. Section 66: Further restrictions on employment of women Deletion of Section 66 of the Factories Act, 948. 8. Section 87: Substitution of the exiting clause (b) of Section 87 as follows (b) prohibiting or restricting the employment of persons below the age of 8 years, or a pregnant women or a person with disabilities in the manufacturing process or operation. (9)
Existing Provisions Suggested Amendment by NCW 9. Section 05: Existing sub-section () of Section 05 to be substituted as The Court shall take cognizance of an offence under this Act on a complaint made by an inspector or NGO or a trade union or a worker s representative or an individual worker. 0. Section 08: After sub-section () the following sub-section (4) to Section 08 shall be inserted as Without prejudice to the provisions of sub-section (), every factory shall set up an information center for women workers, which shall provide them with information regarding the protective measures under the Act and the rules made thereunder. (0)
THE GUARDIANS AND WARDS ACT, 890 Existing Provisions Section 0 - Form of application: ) If the application is not made by the Collector, it shall be by petition signed and verified in manner prescribed by the Code of Civil Procedure (88) for the signing and verification of a plain, and stating, so far as can be ascertained- a) the name, sex, religion, date of birth and ordinary residence of the minor; b) where the minor is a female, whether she is married, and, if so, the name and age of her husband. Section 9 - Guardian not to be appointed by the Court in certain cases: Nothing in this Chapter shall authorize the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or declare a guardian of the person - a) of a minor who is a married female and whose husband is not, in the opinion of the Court, unfit to be guardian of her person, or b) of a minor whose father is living and is not, in the opinion of the court, unfit to be guardian of the person of the minor, or c) of a minor whose property is under the superintendence of a Court of Ward competent to appoint a guardian of the person of the minor. Section : Capacity of minors to act as guardians - A minor is incompetent Suggested Amendments by NCW. Section 0: Form of application Clause ( b ) of Section 0 ( ) be amended as follows Whether the minor is married and, if so, the name, religion, date of birth and ordinary residence of the spouse.. Section 9: Guardian not to be appointed by the Court in certain Cases Section 9(a) of the Act provides that nothing in this Chapter shall authorise Court to appoint or declare a guardian of the person: a) of a minor who is a married female and whose husband is not, in the opinion of the Court, fit to be guardian of her person, or b) of a minor whose father is living and is not, in the opinion of the court, fit to be guardian of the person of the minor. To make i) Section 9(a) applicable to both females and males and ii) to bring the living mother or father within the purview of Section 9 (b) the following amendments were suggested a) of a minor who is a married person and whose spouse is, in the opinion of the Court, unfit to be a guardian of the minor s person or b) of a minor whose mother or father is living and is, in the opinion of the Court, unfit to be guardian of the person of the minor.. Section : Capacity of minors to act as guardians Substitution of existing Section as follows A minor ()
Existing Provisions to act as guardian of any minor except his own wife or child or, where he is the managing member of an undivided Hindu family, the wife or child of another minor member of that family. Section 4: Cessation of authority of guardian - ) the powers of a guardian of the person cease - a) by his death, removal or discharge; b) by the Court of Wards assuming superintendence of the person of the ward; c) by the ward ceasing to be a minor; d) in the case of a female ward, by her marriage to a husband who is not unfit to be guardian of her person or, if the guardian was appointed or declared by the Court, by her marriage to a husband who is not, in the opinion of the court, so unfit; or e) in the case of a ward whose father was unfit to be a guardian of the person of the ward by the father ceasing to be so or, if the father was deemed by the Court, to be so unfit, by his ceasing to be so in the opinion of the Court. Suggested Amendment by NCW is incompetent to act as guardian of any minor a) except his/her spouse or child; or b) where he/she is the managing member of an Undivided Hindu Family, the spouse or child of another minor member of that family. 4. Section 4: Cessation of authority of guardian Section 4()(a) provides that The powers of a guardian of the persons cease a) by his death, removal or discharge;, b)in the case of a female ward by her marriage to a husband who is not unfit to be guardian of her person, or if the guardian was appointed or declared by the court, by the marriage to a husband who is not, in the opinion of the Court so unfit; for to extend the provisions of this section to females also following amendments in ( i ) Section 4 ()(a) and 4()(d) were suggested 4()(a) by death, removal or discharge, ii) 4()(d) i) by the marriage of the ward to an individual who is fit to be guardian of the person of the ward or; ii) if the guardian was appointed or declared by the Court, by the marriage of the ward to an individual who is, in the opinion of the Court, so fit. Section 4()(e) provides that powers of a guardian of the person cease in the case of a ward whose father was unfit to be a guardian of the person of the ward by the father ceasing to be so or, if the father was deemed by the Court, to be so unfit, ()
Existing Provisions Suggested Amendment by NCW by his ceasing to be so in the opinion of the court. To widen the scope of clause (e) of Section 4, Sub-section () the following amendment was suggested 4()(e) i) In the case of a ward whose mother or father was unfit to be a guardian of the person of the ward, by the mother or father ceasing to be so, or ii) if the mother or father was deemed by the Court to be so unfit, by his or her ceasing to be so in the opinion of the Court. ()
THE HINDU ADOPTION AND MAINTENANCE ACT, 956 Existing Provisions Section 7: Capacity of a male Hindu to take in adoption - any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced that world, or has ceased to b a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind. Explanation - If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specififed in the preceding proviso. Section 8: - Capacity of a female Hindu to take in adoption - Any female Hindu - a) who is of sound mind, b) who is not aminor, and c)who is not married, or if married, whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind, has the capacity to take a son or daughter in adoption. Section 4: Determination of adoptive mother in certain cases - ) Where a Amendments proposed by NCW Section 7: Capacity of a Hindu to take in adoption - Any person who is a Hindu of sound mind and not a minor has the capacity to take a son or a daughter in adoption : - Provided that, if he/she has a spouse living, he/she shall not adopt except with the consent of his/her spouse unless the spouse has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of un sound mind. (A female Hindu who is married and whose husband becomes incapacitated and if she chooses not to re-marry, she would remain a member of her husband s family. If she desired to make an adoption, the adopted child must be related to the husband of the female making the adoption. The Explanation of this section shall be deleted. Section 8: Capacity of a female Hindu to take in adoption - This section shall be deleted. Section 4: Determination of Adoptive mother/father in certain cases - ) Where a Hindu who has a spouse living adopts a child, she/he shall be deemed to be the adoptive mother/father. Sub-section ) of Section 4 shall be deleted. For sub-section ) of Section - The word Justification / Remarks Section 7: Capacity of a Hindu to take in adoption These changes would ensure a safer home for the child to be adopted. A female Hindu who is married and whose husband becomes incapacitated, if chooses, not to remarry, she would remain a member of the family of her husband. If she desires to make an adoption the adopted child must be ensured full relationship in the family of his adoption and such a child must be related to the husband of the female making the adoption. This would be in consonance to the words and sprit of the Act. As practice of bigamy is prohibited under the Hindu Marriage Act, hence this section has no meaning in present situation Section 8: Capacity of a female Hindu to take in adoption - While a Hindu husband can adopt a child to himself and to his wife, if the latter has consented, a Hindu wife cannot adopt to herself but the adoption must be by the husband alone and her only role is to give or decline a consent. To make the father alone entitled to adopt without any such similar right to and in favour of the mother cannot satisfy the requirements of article 4 and 5 of the Constitution. Whosoever would adopt, (4)
Existing Provisions Hindu who has a wife living adopts a child, she shall be deemed to be the adoptive mother. ) Where an adoption has been made with the consent of more than one wife, the senior most in marriage among them shall be deemed to be the adoptive mother and the others to be step-mothers. ) Where a widower or a bachelor adopts a child, any, wife whom he subsequently marries shall be deemed to be the step-mother of the adopted child. Section 8: Maintenance of Wife - )., ).., ) A Hindu wife, shall not be entitled to separate resident and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion. Amendment proposed by NCW mother should be substituted for the word step-mother. For sub-section 4 of section 4, the word father should be substituted for the word step-father. Section 8: Maintenance of Wife: )., ).., ) In sub-secjtion ) of section 8 the words is unchaste or shall be deleted. Justification / Remarks the father or the mother the other would become the adoptive father or the adoptive mother as the case may be, and the adopted child shall stand transplanted as the child of and in the adoptive family for all purposes, as provided in section of the Act. Amendment to Section 7 will satisfy the requirement and consequently this section will not have meaning. Section 4: Determination of Adoptive mother/father in certain cases - When an adoption is made by an unmarried or widow Hindu female or a male Hindu bachelor or a widower the Act provides that the husband with whom such a female marries shall be deemed to be the step father of the child adopted before marriage, likewise male who is bachelor or widower after making an adoption marries, his wife shall be deemed to be the step mother of the adopted child. Sub-section ) of section 4 - This provision is valid only in the case of polygamy which is already prohibited under the Hindu Law. Subsection ) of section 4 - These provisions are onerous and they are not in the interest of the adopted child because the adopted child if adopted by a female will not have paternal relations and the adopted child of a single male shall not have material relations. Sub-section 4 of section 4 - That the adopted children may have full (5)
Existing Provisions Amendment proposed by NCW Justification / Remarks relationships on the marriage of the adopters, in the paternal and the maternal lines. Section 8: Maintenance of Wife: )., ).., ) Conversion should not be the criteria to deprive a woman from her rights. Depriving a Hindu wife of her right for separate residence and maintenance solely on the ground of her ceasing to be Hindu as provided in section 8 ( ) of the Act is equally unreasonable and violative of the provision of the Constitution (Article 5). Note - In order to minimize the hardship caused by non-payment of maintenance, and to ensure certainty of payment, it has been recommended that all maintenance orders should be deducted at the source by employer (as done in the case of income-tax). Whether it is not possible to deduct at source as in the case of a business man or selfemployed person, the arrears of maintenance should re recovered as arrears of the land revenue or by distress (6)
THE PRE-NATAL DIAGNOSTIC TECHNIQUES (REGULATION AND PREVENTION OF MISUSE) ACT, 994 Existing Provisions Suggested Amendments by NCW. All the clinics conducting ultrasound investigation must be registered.. Law should provide imprisonment and fine for doctors conducting sex determination tests in violation of the Act.. Advisory and Supervisory Bodies should be set up. NCW should be represented in the Central Appropriate Authority and Supervisory Body. 4. Issues relating to Pre-Natal Diagnostic Techniques should be taken up by State Women s Commission and State Human Right Commissions. 5. The Act should be widely advertised in simple language, to reach people at large. 6. Advertisement of availability of sex determination facilities is banned by law. Violators should be punished. Recommendations made in the National Workshop on Laws concerning Crime against Women- Strategies and Amendments(Part-I held on..004). Laws dealing with female infanticide and female foeticide by using sex selection techniques primarily deal with social problems and while dealing (7)