JAMIA MILLIA ISLAMIA

Law in Conflict with Social Custom

in order to Provide Gender Justice

PRANAV SHRIVASTAVA
B.A.LL.B
VII SEM
2017-22 BATCH

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 TABLE OF CONTENTS

INTRODUCTION 4
Customary practice against women 5
Mitigation 07
Provision 08
Conclusion 11
Binliography 12

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“Consensus-building around social issues is extremely difficult, because it touches the
identity of nations, communities and individuals. Discussion of social questions
polarizes viewpoints and may seem to widen the gap between cultures. But in the end,
the overriding social purpose concentrates our minds and enables us to bridge all
cultural gaps-not because we want to go home with an agreed form of words, but
because all of us, each in our own way, want to save people’s lives.”

-UNFPA Executive Director Thoraya Ahmed Obaid

Introduction:
Crime against women is the most evocative, traumatising and political subject for discussion
within India. Although it is not a direct issue of development yet it affects women’s
development; it restricts them from full participation in national development efforts and
obtaining their due share in developmental efforts.
This subject has not been exhaustively studied but we know that throughout history, women
in various continents of the world have been considered as the physically weaker sex. Crime
against women is assertion of dominance over them and come from the baser instincts of
society. It not only represents the greater physical strength of men over women but also takes
the form of the assertion of dominance of power and of riches over the women of the poorer
classes.
 The powerful and the rich expect the women of lower status to serve them in various ways
one of which is sexual favours and in case they deny them by resistance, rape, kidnapping,
and molestation take place. Familial crime was rare in Indian society.

 The phenomena which led to most crimes in Indian society were the frequent invasions
throughout history. The conquering armies took vengeance over the women of the defeated
by making them slaves, raping them, selling them or even forcing them into marriages. The
ancient Hindu scriptures have always taken a very dim view of crimes against women,
Brahmins and cows. This is not however to say that crimes against women were not
perpetuated during Hindu dominance or rule.

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2.Customary Practice against women:

All violations of women’s and girls’ rights may be described as harmful practices, but
there are particular forms of violence against women and girls which are defended
on the basis of tradition, culture, religion or superstition by some community
members. These are often known as ‘harmful traditional practices.’ These are largely
carried out without the consent of the girl/woman involved and thus constitute a
violation of human rights as set out in the Universal Declaration of Human Rights. As
with all forms of violence against women and girls, harmful traditional practices are
caused by gender inequality including unequal power relations between women and
men, rigid gender roles, norms and hierarchies, and ascribing women lower status in
society.
Harmful practices are referred to in the Convention on the Rights of the Child (Article
24(3)), CEDAW (Articles 2, 5 and 16) and regional instruments. They constituting
violence against women and girls can include: acid violence, breast flattening,
cosmetic mutilation, dowry and bride price, early/forced marriage and marriage by
abduction/rape, female genital mutilation/cutting (FGM/C), ‘honour’ crimes,
corrective rape, and female infanticide, ritual sexual slavery, virginity testing,
practices related to initiation or menstruation, some widowhood rituals and
accusations of witchcraft levied at older women.

In many countries there are specific laws aiming to curtail these practices, in most
instances they also contravene countries’ existing laws relating to physical and
sexual violence. Harmful traditional practices are a product of social norms which
aim to uphold cultural ideas about gender roles and social relations. Many of these
practices, including acid violence and sex-selective abortion, have become common
relatively recently but may be considered harmful traditional practices as they are
rooted in and upheld by such ideas. Where such practices exist, there may be
negative social sanctions which are experienced by individuals if the harmful
traditional practice is not carried out.

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 These practices are often carried out without the consent of the women involved
and as a result women themselves often play a role in perpetuating such violence.
Some of the specific practices are dealt with hereinafter.
Honour killing
Dowry
Female Genital Mutilation
Early And Forced Marriage

Honour killing: An honour killing (also called a customary killing) is the murder of a
member of a family or social group by other members, due to the belief of the
perpetrators (and potentially the wider community) that the victim has brought
dishonour upon the family or community. Honour killings are directed mostly against
women and girls.
Occurrence and prevalence: In 2000, the United Nations estimated that there are
5,000 honour killings every year. It can be said that such killings are more prevalent
among the Muslim communities and hence majorly practised by the Middle Eastern
countries where gruesome instances have come to public knowledge. Countries such
as Egypt, Iran, Iraq, Jordan, etc account for more than half of the honour killings in
the world on account of discriminatory family laws and a male dominated society.
Heinous examples can be seen in countries such as Saudi Arabia where girls are even
slaughtered for chatting with men on social networking websites. Stoning is also
practised among countries such as Pakistan (karo-kari) and Afghanistan where young
women are publicly stoned to death for refusing to marry according to the family’s
wishes. Honour killings have been reported in northern regions of India, mainly in
the Indian states of Punjab, Rajasthan[xxvi], Haryana, Uttar Pradesh, as a result of
people marrying without their family’s acceptance, and sometimes for marrying
outside their caste or religion.

Early and forced Marriage: The age at which it is appropriate for girls to marry has been a
contentious matter in many countries in recent centuries. In societies where marriage was
considered to be the prerogative of families, the children themselves were rarely consulted
and the age of marriage, or at least of betrothal, was likely to be quite young, before children
could exert their own will. Although physical readiness for sexual intercourse and child-
bearing was a consideration, this was a matter to be supervised by adult kin, and the wedding

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could, if necessary, be timed so that it occurred separately from the consummation of
marriage. Apart from families, the only other institutions directly concerned with marriage
were likely to be religious ones.[xii]
    Occurrence and prevalence: This practice has been followed widely across the continents
in several parts of the world. In South Africa, uthawala is the practice of abducting young
girls and forcing them into marriage, often with the consent of their parents.[xiii]The practice
occurs mainly in rural parts of South Africa, and the girls who are involved in this practice
are frequently under-aged, including some as young as eight. Other countries of Africa such
as Niger and Madagascar have been practising it as well. In Asia, Pakistan, Afghanistan and
India are the major nations following this since time immemorial. Although having been
declared illegal in these countries, the absence of effective law-enforcing agencies has kept
this practice unchecked which is why rural areas still consider it a very important part of their
culture and tradition. Forced marriage is also used as a tool to get citizenship in Britain where
parts of the British Pakistani community practice is due to factors such a family pride, social
obligation and wishes of the parents.

Female Genital Mutalition

Female genital mutilation (FGM) involves the partial or total removal of the external female
genitalia for non-medical purposes. It interferes with the natural functioning of the body and
has no known health benefits.[vii]
Occurrence and prevalence: Globally, FGM is typically carried out on young girls, from
infants to adolescents as old as 15 years of age. Occasionally it is carried out on adult women.
It is difficult to obtain accurate information on the magnitude of FGM, but according to the
WHO, between 100 and 140 million girls and women around the world have already
undergone some form of the practice. According to the WHO, female genital mutilation is
practiced in at least 28 countries in Africa and is most widespread in the Sahel and the Horn. 
In the Middle East and North Africa, it is practiced extensively in Egypt and to a lesser extent
in Yemen
Mitigation of these custom through enriching rule of law:
Since the World Conference on Human Rights, held in Vienna in 1993, it is hoped that all
States will recognize and accept the universality and indivisibility of the human rights of
women. It is also expected that there will be more ratifications of the Convention on the
Elimination of All Forms of Discrimination against Women. However, much remains to be

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done in the field of equality, taking into account the absence, in many countries, of real
constitutional guarantees of fundamental human rights for all.[xxxi] The persistence of
negative customary norms that conflict with and undermine implementation of both national
legislation and international human rights standards must be addressed.
Although such national legislation and international standards are vital in tackling the issue of
harmful traditional practices, there is an urgent need for a parallel programme that addresses
the cultural environment from which these practices emerged, in order to eliminate the
various justifications used to perpetuate them. It is the duty of States to modify the social and
cultural attitudes of both men and women, with a view to eradicating customary practices
based on the idea of the inferiority or superiority of either sex or on stereotyped roles of
gender.[xxxii]  Comprehensive and intensive programmes of formal and informal education,
awareness raising and training are the approach followed by some Governments, non-
governmental organizations and women’s groups.

JUSTICE INDU MALHOTRA, WHO WROTE THE DISSENTING JUDGMENT IN THE

SABARIMALA CASE, SAID THAT THE NOTIONS OF RATIONALITY CANNOT BE
BROUGHT INTO MATTERS OF RELIGION . SHE ADDED THAT THE SHRINE AND DEITY
ARE PROTECTED UNDER ARTICLE 25 OF THE C ONSTITUTION AND THAT IT WAS
NOT UPTO THE COURT TO DECIDE WHICH RELIGIOUS PRACTICES SHOULD BE
STRUCK DOWN , EXCEPT IN ISSUES OF SOCIAL EVIL LIKE 'SATI'. JUSTICE
MALHOTRA, THE ONLY WOMAN ON THE BENCH , WAS OF THE VIEW THAT THE
PETITION DOES NOT DESERVE TO BE ENTERTAINED .

Foundation of Law in improvising women position:

 The Dowry Prohibition Act 1961 prohibits the request, payment or acceptance of a dowry "as
consideration for the marriage", where "dowry" is defined as a gift demanded or given as a
precondition for a marriage. Gifts given without a precondition are not considered dowry, and are
legal, per section 3(2). Asking for or giving of dowry can be punished by imprisonment of up to six
months, a fine of up to Rs. 15000 or the amount of dowry (whichever is higher), or imprisonment up
i
to 5 years. It replaced several pieces of antidowry legislation that had been enacted by various
Indian states.

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 The Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 is a legislative act in India that seeks to protect women from
sexual harassment at their place of work. The Act will ensure that women are
protected against sexual harassment at all the work places, be it in public or private.
This will contribute to realisation of their right to gender equality, life and liberty and
equality in working conditions everywhere. The sense of security at the workplace
will improve women's participation in work, resulting in their economic
empowerment and inclusive growth. Under the Act, which also covers students in
schools and colleges as well as patients in hospitals, employers and local authorities
will have to set up grievance committees to investigate all complaints. Employers
who fail to comply will be punished with a fine of up to 50,000 rupees.

 The Marriage Laws(Amendment) Bill, 2010 To amend the Hindu Marriage Act, 1955
and the Special Marriage Act, 1954 to making divorce easier on ground of
irretrievable breakdown of marriage was introduced in the parliament in 2012. The
Bill replaces the words "not earlier than six months" in Section13-B with the words
"Upon receipt of a petition." It also provides a better safe guard to wife by inserting
section13D by which the wife may oppose the grant of a decree on the ground that
the dissolution of the marriage will resulting rave financial hardship to her and that it
would in all the circumstances be wrong to dissolve the marriage. New section13E
provides restriction on decree for divorce affecting children born out of wedlock and
states that a court shall not pass a decree of divorce under section13C unless the
court is satisfied that adequate provision for the maintenance of children born out of
the marriage has been made consistently with the financial capacity of the parties to
the marriage.
 The Maternity Benefit Act, 1961 (Amended in 1995) Section8 of the Act reads a
follows after April 2, 2008: "Payment of medical bonus. (1) Every woman entitled to
maternity benefit under this Act shall also be entitled to receive from her employer a
medical bonus of one thousand rupees, if no prenatal confinement and post-natal
care is provided for by the employer free of charge. (2)The Central Government may ii
before every three years, by notification in the Official Gazette, increase the amount
of medical bonus subject to the maximum of twenty thousand rupees.

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 The Medical Termination of Pregnancy (MTP) Act, which was enacted by the
Indian Parliament in the year 1971 with the intention of reducing the incidence of
illegal abortion and consequent maternal mortality and morbidity. The MTP Act
came into effect from 1 April 1972 and was amended in the years 1975 and 2002.
Pregnancies not exceeding 12 weeks may be terminated based on a single opinion
formed in good faith. In case of pregnancies exceeding 12 weeks but less than 20
weeks, termination needs opinion of two doctors. The Act clearly states the
conditions under which a pregnancy can be ended or aborted, the persons who are
qualified to conduct the abortion and the place of implementation.

 The Equal Remuneration Act, 1976 An Act to provide for the payment of equal
remuneration to men and women workers and for the prevention of discrimination,
on the ground of sex, against women in the matter of employment and for matters,
connected there with or incidental thereto. Apart from the above mentioned legal
and constitutional provisions the Government of India has set up few special
initiatives for the protection and empowerment of women :
 National Commission for Women is a statutory body of the Government of India,
generally concerned with advising the government on all policy matters affecting
women. It was established in January 1992 under the provisions of the Indian
Constitution, as defined in the 1990 National Commission for Women Act.
The objective of the NCW is to represent the rights of women in India and to provide
a voice for their issues and concerns. The subjects of their campaigns have included
dowry, politics, religion, equal representation for women in jobs, and the
exploitation of women for labour. They have also discussed police abuses against
women.The commission regularly publishes a monthly newsletter, Rashtra Mahila in
both Hindi and English.  Reservation for Women in Local Self –Government : The
73rd Constitutional Amendment Acts passed in 1992 by Parliament ensure one-third
of the total seats for women in all elected offices in local bodies whether in rural
areas or urban areas.  The National Plan of Action for the Girl Child for 1991- 2000,
is a specially formulated action plan by the Government of India to protect and
promote the Girl Child. This plan seeks to prevent female foeticide and infanticide,

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eliminate gender discrimination, provide safe drinking water and fodder near homes,
rehabilitate and protect girls from exploitation, assault and abuse.
 National Policy for the Empowerment of Women, 2001 : The Department of
Women & Child Development in the Ministry of Human Resource Development has
prepared a ―National Policy for the Empowerment of Women” in the year 2001.
The goal of this Policy is to bring about the advancement, development and
empowerment of women. The Policy will be widely disseminated so as to encourage
active participation of all stakeholders for achieving its goals.

Conclusion: Within the framework of a democratic polity, our laws, development

policies, Plans and programmes have aimed at women‘s advancement in different
spheres. From the Fifth Five Year Plan (1974-78) onwards has been a marked shift in
the approach to women‘s issues from welfare to development. In recent years, the
empowerment of women has been recognized as the central issue in determining
the status of women. The National Commission for Women was set up by an Act of
Parliament in 1990 to safeguard the rights and legal entitlements of women. The
73rd and 74th Amendments (1993) to the Constitution of India have provided for
reservation of seats in the local bodies of Panchayats and Municipalities for women,
laying a strong foundation for their participation in decision making at the local
levels. India has also ratified various international conventions and human rights
instruments committing to secure equal rights of women. Key among them is the
ratification of the Convention on Elimination of All Forms of Discrimination Against
Women (CEDAW) in 1993. The women‘s movement and a wide-spread network of
non-Government Organisations which have strong grassroots presence and deep
insight into women‘s concerns have contributed in inspiring initiatives for the
empowerment of women. However, there still exists a wide gap between the goals
enunciated in the Constitution, legislation, policies, plans, programmes, and related
mechanisms on the one hand and the situational reality of the status of women in
India, on the other.

Bibliography:

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