dowry prohibition act, 1961 - ncwapps.nic.inncwapps.nic.in/pdfreports/towards gender-just...

(1)

Existing Provisions

1

The offence under the Act is treated

as an offence against individual women.

S.3 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 2 % of the

annual income of the bride�s parents.

Amendment proposed by NCW

2

1. For a more effective

implementation it is desirable to make

dowry offences as against the State.

Modification of S.2 defining �Dowry�.

Ss. 3 & 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 ( 2 ) of S.9

on the following lines:- �In particular

and without prejudice to the generality

Remarks

3

Indian Penal Code. 1( a ).Substitution

of Explanation to sub-section (1) of

Section 304B 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 ( 2 ) of

Section 498 A:

In sub-section ( 2 ) 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.

DOWRY PROHIBITION ACT, 1961

(2)

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 3 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 �Non-

bailable� offence punishable with

�imprisonment for not less than 5 year

which may extend to 10 years and fine

not less than 15,000 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.

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 31.1.2004.

1. 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).

2. Though list of gifts is mandatory

and is to be signed by both the

families but it is generally not

Existing Provisions

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2

Remarks

3

(3)

Consequential amendments of S304 IPC�

In the First Schedule, Col. 3, the existing

entry be substituted by �imprisonment

for life or imprisonment for a term not

less than 7 years but which may extend

10 years�.

4.Omit S. 198A.

Amending S.39 to cast a duty on the

public to give information as to a dowry

offence.

In Clause ( v ), for the word and figures,

�and 304� , �304 and 304B� shall be

substituted.

After Clause, ( xii )insertion of the

following:

�Section 498B (that is offences relating

to dowry)�.

Indian Evidence Act -

Insertion of S.113AA.

Burden of proof lies with the person

charged with S498 IPC (Dowry Offence).

General Suggestions and Remarks:

(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.

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.

3. 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.

Existing Provisions

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2

Remarks

3

(4)

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

20 % 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.

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.

10. 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.

11. 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

Existing Provisions

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2

Remarks

3

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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.

12. Dowry related cases must be

adjudicated expeditiously to avoid

further harassment of the woman.

13. 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.

14. 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.

15. 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

Existing Provisions

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2

Remarks

3

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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.


Workshop on Laws concerning Crime

against Women - Strategies and

Amendments (Part-I) held on 1.2.2004

1. Application of extortion � u/s 383/

384 on extortion � if intentionally

puts any person in fear of any

injury to that person and then

dishonestly induces extortions �

3 years � Dowry can be included.

2. 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.

3. 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.

Existing Provisions

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2

Remarks

3

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Existing Provisions

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2

Remarks

3

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.

10. 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

1. Social Status � Dowry seen as a

status symbol to be discouraged.

(8)

Existing Provisions

1

Preamble Definition

S.3

S.4

Long title

S.1 ( i )

S.2 (i) (a)

S.2 (i) (d)

S..2 (i) (e)

S.2 (2)

Part II

Ss. 3 � 5

Part III

Heading

Part III

S.6 (1)

S.6 (3)

S.8 (1)

S.8(2)

Part IV (Ss. 9 � 14)

Part V (Ss.16 � 7)

Suggested Amendments by NCW

2

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. 1 ( 1 ) for �Commission of Sati

(Prevention) Act�. �Commission of Sati

Murder (Prevention) Additional Provisions

Act� to be substituted.

Omit S.2 (1) (a).

Substitution of S. 2 (1) (d) to define

court to mean �a District and Sessions

Court�.

Substitution of �Sati murder� for �Sati�

in S. 2 (1) (3).

In S.2 ( 2 ) �as in the code� and �or the

code� to be omitted.

Part II (Ss. 3 - 5) to be omitted.

Part III; for �Sati� the words �Sati murder�

to be substituted.

In S. 6 (1) �any abetment thereof� to be

omitted.

In S. 6 (3) for �any other provision of

this Act,� the words �or any other law�

to be substituted.

Remarks

3

COMMISSION OF SATI (PREVENTION) ACT 1987

(9)

S.18

S.19

Indian Penal Code

S.303

Criminal Procedure Code � S.39 (1) (v)

Evidence Act � Ss 113, 113A.

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.3 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 (1), for words �any offence under

this Act�, �Sati murder� to be substituted.

S.8 ( 2 ) to be substituted to read as �

�every Collector or District Magistrate

acting under sub-section (1) shall report

seizure to the Court and shall await the

orders of such court for the disposal of

the same.

Part IV (Ss. 9-14) to be omitted.

Part V (Ss. 16 & 17) to be omitted.

In S. 18, for �sub-section ( 1 ) of S.4�,

the words �S.303A of the Indian Penal

Code� to be substituted.

In S. 18 for �Sati�, wherever it occurs,

�Sati murder� to be substituted.

S. 19 of the Commission of Sati Murder

(Prevention) Additional provisions Act,

1987, to be amended as follows:

Amendment of Act 43 of 1951 � In the

Representation of the People Act, 1951

(43 of 1951):-

In section 8, in sub-section (2), 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 303A and

section 303B of the Indian Penal code

(45 of 1860) or any of the provisions of

the Commission of Sati Murder

(Prevention) Additional Provisions Act,

1987 shall be disqualified from the date

of such conviction and shall continue

Existing Provisions

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2

Remarks

3

(10)

to be so disqualified for a further period

of 5 years since his release�.

In S. 123 for clause (3B), 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

303A of the Indian Penal Code (45 of

1860).�

Existing Provisions

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2

Remarks

3

(11)

Existing Provisions

1

S. 198 of the Code of Criminal

Procedure 1973


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.


2

Restriction on the filing of a complaint

u/s 198 (1) should be removed in respect

of Ss. 494 and 495 of the IPC. Omitting

Clause ( c ) to the proviso to sub-section

I (1) of S. 198. The amendment may

be as follows:

In sub-section (1) of S. 198, 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.

General Suggestions and Remarks

3

Normally women (wives) in India do not

make any such complaints for a variety

of reasons.

CODE OF CRIMINAL PROCEDURE, 1973(Cognizance of offence of Bigamous Marriage)

(12)

Existing Provisions

1

Ss. 372 and 373 of the IPC.


Expressed concern on reported sale of

young girls in the guise of marriage.


2

Ss. 372 and 373 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, 1860

and to suggest reform of these provisions.

The following points were raised and

suggestion made in the National


Against Women - Strategies and

Amendments: -

Shortcomings in the existing provisions

of IPC

1. The biggest difficulty with law on

�Rape� u/s 375 and �unnatural

offences� u/s 377 is that they are

limited to penetrative abuse.

2. Section 375 does not recognize

rape within a marriage unless

women is below the age of 15 or

at a time when women is living

separate from him under a legal

decree of separation or custom

(376-A).

Consequential Amendments Suggested

in other Statutes / Remarks

3

Indian Penal Code

1. Amendment to S. 359 to make

appropriate change in the definition

of kidnapping.

2. Amendment of S.361 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.

INDIAN PENAL CODE

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3. 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 un-

comfortable, 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 377 IPC � punishes carnal

intercourse against the order of

nature not covered by S. 375 �

and it can provide a remedy for

child abuse cases for girls and for

Existing Provisions

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3

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women whose abuse is not covered

by S 375.

7. Section 354 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

1. Penetration need not be a

requirement for sexual assaults

At present both Sections 375 and

377 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.

2. Sexual assault within marriage must

be punished

At present it is not punished except

if the wife is below 15 years or during

Existing Provisions

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3

(15)

separation. - Deletion of exception to S

375 guilty be held accountable and not

to be treated as a separate protected

category.

3. Consensual Sex should be de-

criminalized � the term u/s 375 �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 18 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 155(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 327 � helps shield victims from

publicity during and post trial � anonymity

is important. Child victim needs specially

protected � video conference � a

Existing Provisions

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3

(16)

procedure established by law under

Article 21 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 357 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.

Existing Provisions

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3

(17)

There is a need for setting up of criminal

injuries compensation board as High

Courts possess powers u/s 482 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.

10. Victim suffers adversely due to

demand of proof of penetration.

11. The punishment for marital rape

has to be enacted so that wife is not

treated as property of husband.

12. Provisions used in Section 354 �

outraging the modesty � is highly

inadequate.

13. The evidence of children victims

or witnesses wherever possible should

be carried out in a more friendly

atmospheres.

14. 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.

Existing Provisions

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3

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15. An NGO member is not being

associated at the time of filing a

complaint case of Rape in Police Station.

16. Although criminal board should be

established in the directive principles of

Article 138 (a), from 1995 till date no

board has worked at all.

17. 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.

18. Police personnel lack training and

awareness to collect samples of semen,

to detect injury and to investigate the

rape.

19. Under the military law punishment

is more severe for outraging the modesty

� i.e. 7 years whereas under the IPC it

is 2 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.

Existing Provisions

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3

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Existing Provisions

1

S. 5

S.12 (1) (b)


2

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. 12 ( 1 ) (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.


3

The tragic victims of this provision of

law are mostly women.

HINDU MARRIAGE ACT, 1955

(20)

Existing Provisions

1

No statue exists


To introduce a legislation for compulsory

registration of marriages (under

consideration of the Government for

more than 15 years) Bill (of 1978)

received with the reference.


2

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 1978).

Further, to achieve the objective of the

Bill, it could be modeled on the

provisions of the Parsee Marriage and

Divorce Act, 1936.

To explore the possibility of amending

the Births, Deaths and Marriages

Registration Act, 1886 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, 1955 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.)


3

COMPULSORY REGISTRATION OF MARRIAGE

(21)

Existing Provisions

1

Ss. 294 and 509 of the Indian Penal

Code. A Bill on the same subject was

earlier introduced and passed by the

Rajya Sabha in 1988.

While pending before the Lok Sabha,

due to dissolution of the Lok Sabha

the Bill lapsed.


A proposal for the enactment of the

Delhi Prohibition of Eve Teasing Bill,

1992 received from the Ministry of

Home Affairs (1992). The proposal

referred to the Commission in 1992

contained the Delhi Eve Teasing Bill

of 1984 (which has been passed by

the Delhi Metropolitan Council for

adoption by Parliament.


2

The short title and the enacting formula

have to be suitably amended as the

proposed Bill is being brought forward

in 1993.

In view of the nature of the offence

contemplated in the proposed Bill, the

definition of �man� as suggested in

clause 2 (b) of the proposed legislation

may be omitted.

Clause 3 of the proposed legislation of

�Eve-teasing� appears to be only an

amalgam of provisions of sections 294

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).


3

The lapsed Bill of 1988 was better

drafted than the Delhi Prohibition of

Eve Teasing Bill of 1984.

Some of the voluntary organizations

suggested that the expression �Eve

Teasing� should be replaced by a more

appropriate expression suitable for the

Indian context.

EVE TEASING

(22)

Existing Provisions

1


2

The government should immediately

appoint Child Marriage Prevention

Officers. The punishment provided for,

under Section 23, of the Child Marriage

Restraint Act 1929, 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.


3

THE CHILD MARRIAGE RESTRAINT ACT, 1929

(23)

Existing Provisions

1


2

Section 2, 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 2, clause ( b ) of the Act,

the definition of �lunatic� should be

deleted.

Section 3, clause (2), Explanation 1,

of the Act should be amended to include

offences under sections 376A to 376D

of IPC as within its scope.

Section 3, 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 ( 2 ) 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.


3

THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971

(24)

Existing Provisions

1

Section 15 : 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 16: 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 22: Settlement of minor�s

property in contemplation of marriage-

1) 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. 2)

Nothing in this section or in section 21

shall apply to any will made or intestacy

occurring before the first day of January,

1866, 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


2

Section 15 and 16 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.


3

THE INDIAN SUCCESSION ACT, 1925

(25)

by will appoint a guardian or guardians

for his child during minority

Section 214: Proof of representative

title a condition precedent to recovery

through the Courts of debts from

debtors of deceased person � 1) 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 31 or section 32 of the

Administrator - General�s Act, 1913 (

3 of 1913), 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, 1889 ( 7 of

1889), or v) a certificate granted under

Bombay Regulation No. VIII of 1827,

and, if granted after the first day of

May, 1889 having the debt specified

therein. 2) The word debt in sub-section

1) includes any �debt� except rent,

Existing Provisions

1

Suggested Amendment by NCW

2


3

(26)

revenue or profits payable in respect

of land used for agricultural purposes.

Section 218: To whom administration

may be granted, where deceased is a

Hindu;, Muhammadan, Buddhist, Sikh,

Jaina or exempted person - 1) 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. 2) 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. 3)

When no such person applies, it may

be granted to a creditor of the deceased.

Section 219: Where deceased is not a

Section 219 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)��..

Existing Provisions

1


2


3

(27)

Existing Provisions

1


2

1. New sub-clause in Section 19 (1)

as: �No less than 10 % of the persons

appointed as Inspectors under this

section shall be women�.

2. New Section 19A to read as :

�19A In addition to the Inspectors so

appointed under the Minimum Wages

Act, 1948, 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�.


3

THE MINIMUM WAGE ACT, 1948

(28)

Existing Provisions

1


2

1. Section 22: Work on or near

machinery in motion � for the words

�No person below the age of 18 years,

or a pregnant women or a person with

disabilities� shall be substituted

2. Section 27: Prohibition of

employment of women and children near

cotton openers, the following Section

will be substituted - �No person below

the age of 18 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 cotton-

opener is at work.

3. Section 43: 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 ( 2 )

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


3

THE FACTORIES ACT, 1948

(29)

� 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 ( 1 ) of Section 48 and

clause ( b ) of sub-section 3 of Section

48 of the Act as follows - �48 (1) �

In every factory wherein more than 30

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

( 3 ) of Section 48 the following clause

shall be substituted - �48(3)(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, 1948.

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 18 years, or a pregnant women

or a person with disabilities in the

manufacturing process or operation.�

Existing Provisions

1


2


3

(30)

9. Section 105: Existing sub-section

(1) of Section 105 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�.

10. Section 108: After sub-section

(3) the following sub-section (4) to

Section 108 shall be inserted as �

�Without prejudice to the provisions of

sub-section (1), 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�.

Existing Provisions

1


2


3

(31)

Existing Provisions

1

Section 10 - Form of application: 1)

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 (1882) 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 19 - 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 21: Capacity of minors to act as

guardians - A minor is incompetent


2

1. Section 10: Form of application �

Clause ( b ) of Section 10 ( 1 ) be

amended as follows � �Whether the

minor is married and, if so, the name,

religion, date of birth and ordinary

residence of the spouse�.

2. Section 19: Guardian not to be

appointed by the Court in certain Cases

� Section 19(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 19(a) applicable to

both females and males and ii) to bring

the living mother or father within the

purview of Section 19 (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�.

3. Section 21: Capacity of minors

to act as guardians � Substitution of

existing Section 21 as follows � �A minor


3

THE GUARDIANS AND WARDS ACT, 1890

(32)

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 41: Cessation of authority of

guardian - 1) 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.

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 41: Cessation of authority

of guardian � Section 41(1)(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 41 (1)(a) and 41(1)(d) were

suggested � �41(1)(a) � by death,

removal or discharge, ii) 41(1)(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 41(1)(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

1


2


3

(33)

by his ceasing to be so in the opinion

of the court. To widen the scope of

clause (e) of Section 41, Sub-section

(1) the following amendment was

suggested � �41(1)(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�.

Existing Provisions

1


2


3

(34)

Existing Provisions

1

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 14: Determination of adoptive

mother in certain cases - 1) Where a

Amendments proposed by NCW

2

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 14: Determination of Adoptive

mother/Father in certain cases - 1) Where

a Hindu who has a spouse living adopts

a child, she/he shall be deemed to be

the adoptive mother/father. Sub-section

2) of Section 14 shall be deleted. For

sub-section 3) of Section - The word

Justification / Remarks

3

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 14 and 15 of

the Constitution. Whosoever would adopt,

THE HINDU ADOPTION AND MAINTENANCE ACT, 1956

(35)

Hindu who has a wife living adopts a

child, she shall be deemed to be the

adoptive mother. 2) 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. 3) 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 18: Maintenance of Wife -

1)��., 2)��.., 3) 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.

�mother� should be substituted for the

word �step-mother�. For sub-section 4

of section 14, the word �father� should

be substituted for the word �step-father�.

Section 18: Maintenance of Wife:

1)��., 2)��.., 3) In sub-secjtion 3)

of section 18 the words �is unchaste or�

shall be deleted.

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 12 of the Act.

Amendment to Section 7 will satisfy the

requirement and consequently this

section will not have meaning.

Section 14: 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 2) of section

14 - This provision is valid only in the

case of polygamy which is already

prohibited under the Hindu Law. Sub-

section 3) of section 14 - 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 14 - That the

adopted children may have full

Existing Provisions

1


2


3

(36)

Existing Provisions

1


2


3

relationships on the marriage of the

adopters, in the paternal and the

maternal lines.

Section 18: Maintenance of Wife:

1)��., 2)��.., 3) 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 18 ( 3 ) of the Act is equally

unreasonable and violative of the

provision of the Constitution (Article 15).

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 self-

employed person, the arrears of

maintenance should re recovered as

arrears of the land revenue or by distress�

(37)

Existing Provisions

1


2

1. All the clinics conducting

ultrasound investigation must be

registered.

2. Law should provide imprisonment

and fine for doctors conducting sex

determination tests in violation of the

Act.

3. 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.



against Women- Strategies and

Amendments(Part-I held on 1.2.2004)

1. Laws dealing with female

infanticide and female foeticide by using

sex selection techniques primarily deal

with social problems and while dealing


3

THE PRE-NATAL DIAGNOSTIC TECHNIQUES (REGULATION AND PREVENTIONOF MISUSE) ACT, 1994

(38)

Existing Provisions

1


2


3

with such laws one should not forget

the social and economic realities and

we must pay our attention to correcting

social attitudes while working towards

empowerment of women.

2. A comprehensive over view was

given by a Gynecologist participant of

medical uses of the techniques covered

by the Act for carrying out ways of

sex-selection � ultrasonography,

foetoscopy, samples of amniotic fluid,

chorine vili, emberoyo, blood � PNDT

test � test of any of the above. It was

urged that a qualified medical

professional will never be a party to

such a crime and are bound to use

there techniques for the benefit of

human kind.

3. It was lamented that inadequate

attention was given to unqualified

quacks who are mainly responsible for

such misdoings as sex selection for

which the medical profession as a whole

gets the bad name.

4. There was need for effective

machinery for monitoring the use of

deployment of the machines for ensuring

that only qualified medical practitioners

are allowed to use and deploy the same

which would by itself ensure that the

misuse of sex selection techniques is

reduced to the minimum level.

5. A point was also made that the

PNDT Act does not take into account

(39)

Existing Provisions

1


2


3

the important role of sonography in

detection of diseases.

Observations

1. Preference in male child emanates

from various factors that are responsible

for declining trend in sex ration � viz

dowry practice, traditional role of women

as mere housekeepers, absence of

education of girl child, lack of economic

independence of women.

2. The growth of techniques such as

ultrasonography etc facilitated the

adverse trend in social structure of the

country with the incidents of female

infanticide and female foeticide

flourishing with these developments.

3. More and more people have been

resorting to pre-natal sex techniques

and taking the recourse to abortion on

identification of female foetus and with

this, along with anti-natal deaths,

prenatal deaths have also become

possible.

4. The trend is not merely in lower

strata but more so among middle and

upper class who have greater access

to such technology.

5. The ratio between the female

and male is still declining in spite of

urbanization and rise in literacy.

6. Under façade of �In vitro fertility

clinics� sex selection of the unborn child

(40)

Existing Provisions

1


2


3

even before conception is being offered

to evade registration of clinics under

the PNDT Act.

7. The first ladder to the crime of

sex �identification and revelation� are

the radiologist/sonologist who are

subsequently abetted by the abortionists

in the Commission of the Crime. Role

of ultrasound centers is highlighted for

aiding in sex selection.

8. The practice of female infanticide

prevailing for long due to incorrect and

wrong social attitudes

9. The decline in female sex ratio

and misuse of pre-natal techniques are

linked with each other.

10. The laws are most stringent ones

but what one lacks is their proper

implementation and enforcement.

(41)

Existing Provisions

1

Section 3 (1) (j) - �related� means

related by legitimate kinship - Provided

that illegitimate children shall be

deemed to be related to their mother

and to one another, and their legitimate

descendants shall be deemed to be

related to them and to one another,

and any word expressing relationship

or denoting a relative shall be construed

accordingly.

Section 3 ( 2) : In this Act, unless the

context otherwise requires, words

importing the masculine gender shall

not be taken to include females.

Section 4 ( 2 ): For the removal of

doubts it is hereby declared that nothing

contained in this Act shall be deemed

to affect the provisions of any law for

the time being in force providing for

the prevention of fragmentation of

agricultural holdings or for the fixation

of ceiling or for the devolution of

tenancy rights in respect of such

holdings.

Section 6: Devolution of interest of

Coparcenary property: When a male

Hindu dies after the commencement of

this Act, having at the time of his death

an interest in a Mitakshara coparcenary

property, his interest in the property

shall devolve by survivorship upon the

surviving members of the coparcenary


2

1. Proviso under Section 3 (1)(j) �

�related� means related by legitimate

kinship with the following � �Provided

that illegitimate children whose paternity

is known or has been established shall

be deemed to be related to their mother

and father, and their legitimate

descendants shall be deemed to be

related to them, and any word

expressing relationship or denoting a

relative shall be construed accordingly�.

2. Section 3 ( 2 ) which gives primacy

to a male and expressly excludes the

female, should be deleted.

3. tarwad, tavazhi, illom, Kutumba

or kavaru: Over-riding effect of Act �

Section 4 ( 2 ) of the Act should be

deleted.

Section 6: Devolution of interest of

coparcenary property should be

amended as follows: �a) In a joint

Hindu family governed by Mitakshara

law, the daughter of a coparcener shall

be by birth become coparcener in her

own right in the same manner as the

son and have the same rights in the

coparcenary property as she would have

had if she had been a son inclusive of

the right subjected to the same liabilities

and disabilities in respect thereto as

the son; b) At a partition in such a

Joint Hindu family the co-parcenary


3

THE HINDU SUCCESSION ACT, 1956

(42)

Existing Provisions

1


2


3

and not in accordance with this Act.

Provided that, if the deceased has left

surviving a female relative specified in

class I of the Schedule or a male relative

specified in that class who claims through

such female relative, the interest of the

deceased in the Mitakshara, coparcenary

property shall devolve by testamentary

or intstate succession, as the case may

be, under this Act and not by

survivorship.

Section 8: General Rules of Succession

in the case of Males - The property of

a male Hindu dying intestate shall

desolve according to the provisions of

this Chapter - a) First, upon the heirs,

being the relatives specified in class I

of the schedule; b)Secondly, if there

is no heir of class I, then upon the

heirs, being relatives specified in Class

II of the schedule. C) Thirdly, if there

is no heir of any of the two classes,

then upon the agnates of the deceased;

and d) Lastly, if there is no agnate,

then upon the cognates of the deceased.

Section 15: General Rules of succession

in the case of female Hindus: 1) The

property of a female Hindu dying

intestate shall devolve - a) firstly, upon

the sons and daughters (including the

children of any pre-deceased son or

daughter) and the husband, b) secondly,

upon the heirs of the husband, c)thirdly,

upon the mother and father, d) fourthly,

upon the heirs of the father; and e)

property shall be so divided as to allot

to each child the same share. Provided

that the Share which a predeceased

child would have got at the partition if

he or she had been alive at the time of

the partition, shall be allotted to the

surviving child of such predeceased

child; Provided further that the share

allotable to the predeceased child of a

predeceased son or of a predeceased

daughter, if such child had been alive

at the time of the partition, shall be

allotted to the child of such predeceased

child of the predeceased son or of such

predeceased daughter, as the case may

be; c) any property to which a female

Hindu becomes entitled by virtue of the

provisions of clause (a) shall be held

by her with the incidents of coparcenary

ownership and shall be regarded,

notwithstanding anything contained in

this Act, or any other law for the time

being in force, as property capable of

being disposed of by her by will or other

testamentary disposition.

To ensure that the degrees of descent

in representation in the case of males

and females remain equal, the NCW

recommended that Section 8 of the Act

be amended as follows:

�Section 8: General rules of succession

- The property of a Hindu dying

intestate shall desolve according to the

provision of this chapter � a) Firstly,

upon the heirs, being the relatives

(43)

Existing Provisions

1


2


3

lastly, upon the heirs of the mother.

2)Notwithstanding anything contained

in sub-section 1) - a) any property

inherited by a female Hindu from her

father or mother shall devolve, in the

absence of any son or daughter of the

deceased (including the children of any

pre-deceased son or daughter) not upon

other heirs referred to in sub-section

1) in the order specified therein but

upon the heirs of the father.

Section 23: Special Provision respecting

dwelling houses: Where a Hindu

intestate has left surviving his or her

both male and female heirs specified

in class I of the schedule and his or

her property includes a dwelling house

wholly occupied by members of his or

her family, then, notwithstanding

anything contained in this Act, the right

of any such female heir to claim partition

of the dwelling house shall not arise

until the male heirs choose to divide

their respective shares therein; but the

female heir shall be entitled to a right

to residence therein. Provided that

where such female heir is a daughter,

she shall be entitled to a right of

residence in the dwelling house only if

she is unmarried or has been deserted

by or has separate from her husband

or is a widow.

Section 30: Testamentary Succession -

Any Hindu may dispose of by will or

specified in Class I of the schedule; b)

Secondly, if there is no heir of class I,

then upon the heirs, being the relatives

specified in Class II of the schedule; c)

Thirdly, if there is no heir of any of the

two classes, then upon the agnates of

the deceased; and d) Lastly, if there is

no agnate, then upon the cognates of

the deceased�.

Section 15: General Rules of Succession

in the case of Female Hindus - Section

15 of the act should be deleted.

Section 23: Special provision respecting

dwelling houses � � where a Hindu

intestate has left surviving his or her

heirs specififed in Class I of the schedule

and his, or her property includes a

dwelling house wholly occupied by

Members of his or her family, then,


this Act, the rights of any such heir to

claim partition of the dwelling house

shall not arise unitl widowed mother�s

rights (in case the deceased is a male

intestate) have been settled.

Section 30: Testamentary succession -

�Any Hindu may dispose of by will or

other testamentary disposition any

property, which is capable of being so

disposed of by him, in accordance with

the provisions of the Indian Succession

Atc, 1925 or any other law for the time

being in force and applicable to Hindus

(44)

Existing Provisions

1


2


3

other testamentary disposition any

property, which is capable of being to

disposed of by him, in accordance with

the provisions of the Indian Succession

Act, 1925 or any other law for the time

being in force and applicable to Hindus.

Explanation � The interest of a male

in a Mitkshara caparcenary property

or the interest of a member of a tarwad,

tavazhi, illom, Kutumba or kavaru in

the property of the tarwad, tavazhi,

illom, Kutumba or kavaru shall


this Act or in any other law for the

time being in force, be deemed to be

property capable of being disposed of

by him or by her within the meaning of

this (section).

proved that bequests beyond one half

of the property shall be void.

Explanation: The interest of a male

in a Mitakshara caparcenary property

or the interest of a Member of a tarwad,

tavazhi, illom, Kutumba or Karvaru in

the porpoerty of the tarwad, tavashi,

illom, kutumba or kavaru shall


this Act or in any other law for the

time being in force, be deemed to be

property capable of being disposed of

by him or by her within the meaning of

this section.

(45)

Existing Provisions

1

1. To substitute the definition of

�Desertion� given in Section 2 of the

proposed Government Draft.

2. To substitute the �ground of nullity�

of marriage given in Section 24 (1)(b)

of Act.

3. Section 38 : Adulterer or

adulteress to be correspondent to be

substituted.


2

1. Section 2: - �Desertion means the

withdrawal from cohabitation with the

petitioner of other party to the marriage

without reasonable cause and without

the consent or against the will of such

party and included the willful neglect

of the petitioner by the other party to

the marriage�.

2. Section 24 (1)(b): �That the

respondent was important at the time

of the marriage and at the time of the

institution of the suit.�

3. To add the following provision

as one of the grounds for nullity of

marriage � �that one of the spouses has

been proved on medical examination

to be suffering from any incurable

genetic disorders inhibiting the

consummation of the marriage�.

4. Delete the entire Section 40 which

provides for decree nisi for divorce.

However, the following consequential

manedments would need to be made:

In Section 31 � Remarriage of divorced

persons i) � The word has been made

absolute under Section 40 or a decree

of divorce has been passed under

Section 21� should be deleted and would

read as � Where a decree of divorce

has been passed and the leave for

appealing ��.�, ii) In Section 28


3

THE CHRISTIAN MARRIAGE BILL, 2000

(46)

Existing Provisions

1


2


3

� � No petition for divorce to be

presented within one year of marriage

� � the word �nisi� shall be deleted and

Section 28 would read as

��Provided��but any such

leave may, in the interest of justice be

revoked by the court any time before a

decree of divorce is passed and where

the leave is��

Section 42: Maintenance pendente lite

and expenses of proceedings and

Section 43: Permanent alimony and

maintenance. �The Commission

reiterated its earlier suggestions in

respect of Section 125 of Cr. P.C.

The Commission reserves its comments

on Section 44: Disposal of property �

at it would like to examine it in terms

of the provisions in the laws in force in

Goa. As provision for properties

acquired by wife or husband after decree

of judicial separation was not available

in Government Draft, the following

provisions may be incorporated -

�Properties acquired by the wife or

husband after decree of judicial

separation - �i) In every case of judicial

separation under this Act, the wife/

husband shall from the date of the

judgement and while the separation

continues be considered as unmarried

with respect to property of every

description which she / he may acquire

or which may come to or devolve upon

her/him; ii) Such property may be

(47)

Existing Provisions

1


2


3

disposed by her/him in all respect as

an unmarried women/man and on her/

his demise the same shall in case she/

he dies, intestate, go as the same would

have gone if her/his husband/wife had

been the dead. Provided that if any

such wife/husband again cohabits with

his/her wife/husband, all such property

as she / he may be entitled to when

such cohabitation takes place shall be

held to agreement in writing made

between the parties while separate.

Section 38: The provision of �Adulterer

or adulteress to be substituted as follows

- On a petition for divorce or judicial

separation presented on the ground of

adultery, the petitioner shall make the

alleged adulterer or adulteress a co-

respondent, unless the petitioner is

excused by the court from so doing on

any of the following grounds viz., a)

that the respondent is living in adultery

and that the petitioner knows of no

person with whom the adultery has been

committed; ii) that the name of alleged

adulterer or adulteress is unknown to

the petitioner although the petitioner

has made due efforts to discover it;,

iii)that the alleged adulterer or

adulteress is dead; iv) any other ground

which the Court may regard to be

sufficient in the circumstances of the case.

Explanation: The provisions of sub-

section (1) shall so far as may apply in

relation to the answer of respondent

(48)

Existing Provisions

1


2


3

praying for divorce or judicial separation

on the ground of adultery, as they apply

in relation to petition for divorce or

judicial separation presented on that

ground.

(49)

Existing Provisions

1


2

1. The word �person� used in the Act

for the purpose of punishment, should

be substituted with the words �man and

woman� because the women in

prostitution only are punished and the

man who play an important role in he

process goes without punishment.

2. In place of the words �commercial

sex worker� the word �prostitute� should

continue to be sued.

3. The names of the women in red-

light areas should be included in the

voters� list.

4. A group insurance scheme should

be introduced for the women in red

light areas.

5. There should be a provision in

the Act to distinguish the girls who are

thrown forcibly into the prostitution

through an act of rape and intimidation

and the punishment should be made

more stringent for the person

responsible. Very often such girls are

rescued only after their prolonged stay

in the brothels and it is not possible to

point out who was the first client

although the first client is invariably

committing rape on her. In case of

such girls, the Brother owner, pimps

and touts should be charged as abettors

and onus of the proof should be on


3

THE IMMORAL TRAFFIC PREVENTION ACT, 1956

(50)

Existing Provisions

1


2


3

them that they have not abetted/forced

the girl/woman to enter into prostitution

through the act of rape.

The law enforcement machinery should

also be made more effective to save

those girls in time who are likely to be

forced into prostitution.

6. As per the recent figures of crimes

recorded by Delhi Police, of all the

persons arrested under different

provision of the Act nearly 85 to 95 %

accused were women. This clearly brings

out the fact that the present law is not

very effective in stopping prostitution

because the men involved in promoting

prostitution are mostly not considered

guilty. It is especially surprising to note

that there are many more women

arrested for being pimps and touts.

7. It is also necessary to bring out

suitable amendment in the Act to punish

the customer who visits the red light

areas for having sex at a commercial

price.

8. Provision should be made to

provide Free Education to the women

in prostitution under various non-formal/

adult education scheme.

9. Schemes for vocational training

should be available to the women in

prostitution so that they can earn their

livelihood by other means if they decide

to come out of the flesh trade.

(51)

Existing Provisions

1


2


3

10. There should be a specific

provision that police personnel/related

department should render help and

support to the NGOs and communities

who are working for the welfare of the

women in prostitution.



against Women- Strategies and

Amendments(Part-I held on 1.2.2004)

Recommendations on ITP Act has

already been forwarded to the

Government (Annexure-III). The

Commission is of the view that touts,

agents and customers should be

penalized instead of the victim. There

is a need to amend Section 8 of the

Act. Further, there is also a need for

rehabilitating the victim. However, some

of the recommendations/observations

made in the National Workshop on Laws

concerning Crime Against Women �

Strategies and Amendment jointly

organized by the NCW and the Bar

Council of India on 1.2.2004 are as

under:-

Recommendations

1. The police should seal the brothels

and prosecute every body who is

involved in this conduct and rescue

the victims and rehabilitate them.

2. Predominant cases are filed �

u/s 8 ITPA Act 1956 for seducing

(52)

Existing Provisions

1


2


3

and soliciting for prostitution as

compared to other relevant

sections pertaining to brothel

keeping, procuring, inducing,

detaining and living on the

earnings of prostitution which

would attract conviction with a

fine and imprisonment for the

accused. Section 8 should be

amended.

3. There is a need for effective inter-

country and inter-state

investigative mechanism.

4. There should be a constructive

involvement of the NGOs. The

NGOs should come forward to

take benefit of the legal provisions

which give them a locus standee

after being notified as an advisory

body by the State Governments.

5. There should be a better training

and sensitization of the police

force.

Observations

1. I.T.P.A. needs to be re-examined

in the light of the UN Convention

on Trafficking as also in the light

of the SAARC Convention.

2. In the I.T.P.A. the punishments are

grossly inadequate and the law

also does not cover border or cross

state trafficking.

(53)

Existing Provisions

1


2


3

3. I.T.P.A. also does not provide for

investigation of organized chain

of traffickers who may be in

different States and Countries, the

provisions for rescue of victims

are weak and provisions for

rehabilitation are weaker still.

4. There should be certainty of

punishment.

5. Most of the victims come from

other countries. Therefore, the

I.T.P.A. should have an intra-

countries and intra-state aspect.

6. The following shortcomings were

observed in the I.T.P.A.-

a) I.T.P.A. does not define

trafficking to distinguish

child from a minor.

b) I.T.P.A. does not make

prostitution illegal directly.

c) I.T.P.A. gives power to

magistrate for removal of

prostitute from any place.

d) I.T.P.A. provides lesser

punishment for men.

e) I.T.P.A. does not make

provision for rehabilitation

for a victim and children are

taken to Juvenile Justice

Board and not to Child

Welfare Committee.

(54)

Existing Provisions

1


2


3

7. The Act does not draw upon other

statutes like IPC (which would

make the offence non-bailable

more serious and ensuring severe

punishment.Trial should be more

wholesome and targeted towards

prosecuting the people involved

at every stage. A more practical

law is required to be brought into

force to focus on protection of

the victim and eradication of the

problem of commercial sexual

exploitation. There is a very

limited use of IPC dealing with

rape, kidnapping, abduction,

buying and selling of minor etc.

8. Prosecution under I.T.P.A. is

superficial as the only person

prosecuted besides victim are the

women who run the brothels and

all other important elements in

this network like pimps, touts,

middlemen and primary traffickers

are not even touched by the

prosecution.

9. The traditional method of only

earmarked brothels is changed

and the traffickers are resorting

to modern and discreet methods

which include bars, friendship

centers etc.

10. If the victim is young girl below

18 years, when rescued she should

be treated as a victim of the crime

(55)

Existing Provisions

1


2


3

and produced before a child

welfare committee as a child in

need of protection.

11. Criminal Justice System has to

change from its present approach

of the offender alone to a system

where over all justice is rendered

to victims and prosecutors and

judges should also be introduced

to modern developments in the

conduct of trials. Victims should

get a right to participate in the

trial with the same right as of

accused.

12. Custody of victims should not

be routinely given to any body

claiming to be parent of the victim

without application of mind.

13. There are no facilities for

counseling of inmates in State

Homes. Rehabilitation is very

limited with no basic literacy

facilities.

14. Article 23 of the Constitution

prohibits trafficking but the term

is not defind in detail. Other

articles of the Constitution that

deal with equality, human dignity,

right to life and trafficking should

be applied when it comes to the

right of women.

15. I.T.P.A. has lot of shortcomings

and loop holes and problems in

(56)

Existing Provisions

1


2


3

implementation which require

wholesale amendments and

improvements.

16. We can not control the prostitution

by punishing the prostitute. Our

emphasis should be on

rehabilitation aspect of the

prostitute so as to bring the

prostitutes in the mainstream.

17. Trafficking is a much wider

concept and encompasses

everything from forced labour or

forced entertainment industry and

as such, the law should take into

account all these forms of

trafficking. The present law lacks

of conceptual realities.

18. We must look into the link between

the free trade, free market and

the global economy which has

made trafficking much more

lucrative. Prostitution thrives and

in fact is encouraged in the so-

called global tax heavens.

(57)

Existing Provisions

1


2

1. The Commission for Women

(Amendment) Bill, 2000 - the following

amendments were proposed.

Section 1: Short tile, extent and

commencement - � It extends to the

whole of India�.

Explanation: �Provided that it shall apply

to the State of Jammu & Kashmir only

in so far as it pertains to the matters

relatable to any of the entries

enumerated in List I or List III in the

Seventh Schedule to the Constitution

as applicable to that State. Provided

further that it shall come into force in

the State of J & K on such date as the

Central Government may, by notification

in the Official Gazette.

Section 2: Definitions � For Clause (a)

the following clauses shall be

substituted�

i) �Chairperson� means the

Chairperson of the Commission.

ii) �Commission� means the National

Commission for Women constituted under

Section 3.

iii) �Commissioner � means the

Commissioner for Women�s Rights

appointed under Section 4 A who shall

be the investigating authority in respect

of the complaints filed before the

Commission and includes Deputy and/


3

THE NATIONAL COMMISSION FOR WOMEN ACT, 1990

(58)

Existing Provisions

1


2


3

or Assistant Commissioner appointed

under that Section.

Section 3: Constitution of the National

Commission for Women � Sub-section

2, clause ( c ) - in the opening portion,

after the words �the Central

Government� the words � in consultation

with the Chairperson� shall be inserted.

In sub-section 3, another clause (g) shall

be inserted viz; �engages during her/

his term of office in any paid

employment outside the duties of her/

his office�.

Insertion of mew Section 4 A -

Appointment of Commissioner etc � the

following section shall be inserted:

i) The Central Government may, by

notification in the Official Gazette,

appoint a Commissioner for Women�s

Rights and as many Deputy and / o r

Assistant Commissioners for Women�s

Rights as it may think fit to appoint.

ii) Every persons appointed under

sub-section ( 1 ) as Commissioner and

every Deputy or Assistant Commissioner

shall exercise her/his powers and

discharge her/his functions, subject to

the general � superintendence, direction

and control of the Commission.

iii) The Central Government may, by

rules, make provision for the terms and

conditions of service of the

commissioner, Deputy or Assistant

Commissioners.

(59)

Section 5: Officers and other employees

of the Commission - For Sub-section

(1) the following sub-section shall be

substituted: �Subject to such rules as

may be made by the Central Government

in this behalf, the Commission may

appoint such officers and other

employees as it may consider necessary.�

Section 10: Function of the Commission

� In Sub-section (1) � i) in clause ( e

) the words �and make recommendations

and/or take appropriate measures for

the effective implementation of those

provisions� shall be added at the end,

ii) after clause (f) the following clause

shall be inserted, viz � (ff) Intervene in

any proceedings involving any allegation

of violation of the rights of women or

of the safeguards provided for women

under the Constitution or any other law

for the time being in force pending

before a court with the approval of such

court�.

Sub Section 2 of Section 10: The

following sub-section shall be substituted

� i) �the Commission shall submit an

annual report to the Central Government

and may at any time submit special

reports on any matter which, in its

opinion, if of such urgency or importance

that it should not be deferred till

submission of the annual report; ii) The

Central Government shall within 3

months, cause the annual and special

reports of the Commission to be laid

before each House of Parliament along

with a memorandum of action taken

Existing Provisions

1


2


3

(60)

or proposed to be taken on the

recommendations of the Commission

and the reasons for non-acceptance of

the recommendations, if any.

Sub-section 4 : the following sub-section

shall be substituted - �The Commission

shall, while investigating any matter

referred to in sub-section (1), or

inquiring into any complaints under this

Act, have all the powers of a Civil Court

trying a suit under the code of Civil

Procedure, 1908 (5 of 1908), and in

particular in respect of the following

matter, - a) summoning and enforcing

the attendance of witnesses any person

of India and examining them on oath,

ii) discovery and inspection, c) receiving

evidence on affidavits, d) requisitioning

any public record or copy thereof from

any court or office, e) issuing

commissions and f) impounding of

documents and retaining in custody for

a specified period.

Insertion of new Sub-sections (5), (6),

(7), (8) and (9) � after Sub-section 4

of Section 10 the following sub-section

shall be inserted � Sub-section 5: The

Commission shall have power to require

any person, subject to any privilege

which may be claimed by that person

under any law for the time being in

force, to furnish information on such

points or matters as, in the opinion of

the Commission, may be useful for, or

relevant to, the subject matter of the

inquiry and any person so required shall

Existing Provisions

1


2


3

(61)

be deemed to be legally bound to furnish

such information within the meaning

of Section 176 and Section 177 of the

Indian Penal Code. Sub-section 6: The

Commission or any other officer,

specially authorized in this behalf by

the Commission may enter any building

or place where the Commission has

reason to believe that any document

relating to the subject matter of the

inquiry may be found, and may seize

any such document or take extracts or

copies there from subject to the

provisions of Section 100 of the Code

of Criminal Procedure, 1973, in so far

as it may be applicable. Sub-section

7: The Commission shall be deemed

to be a civil court for the purposes of

any offence as is described in Section

175, Section 178, Section 179, Section

180 or Section 228 of the Indian Penal

Code and if any offence is committed

in the view or presence of the

Commission, the Commission may, after

recording the facts constituting the

offence and the statement of the

accused as provided for in the Code of

Criminal Procedure, 1973, forward the

case to a Magistrate having jurisdiction

to try the same. Sub-section 8: Every

proceeding before the Commission shall

be deemed to be a judicial proceeding

within the meaning of Section 193 and

228, and for the purposes of section

196, of the Indian Penal Code (45 of

1860) and the Commission shall be

deemed to be a Civil court for all the

Existing Provisions

1


2


3

(62)

purposes of Section 195 and Chapter

XSVI of the Code of Criminal Procedure

1973 and the Commission may, after

recording the facts constituting the

offence and the statement of the

accused as provided for in the Code of

Criminal Procedure, 1973, forward the

case to a Magistrate having jurisdiction

to try the same. Sub-section 9: Initiation

of Prosecution: If after, investigation

into any complaint under Section 10,

the Commission is satisfied that a person

has committed any criminal offence,

then it may pass an order to that effect

and initiate prosecution of the person

concerned, if there is no necessity for

prior sanction; and if prior sanction of

any authority is required for such

prosecution, then notwithstanding

anything contained in any law, such

sanction shall be granted by that

authority within thirty days of the request

by the Commission and if such sanction

is not granted within the said period

such sanction shall be deemed to have

been granted by the authority.

Insertion of new Sections 10A, 10B and

10C: After Section 10, the following

sub-section shall be inserted: Sub-section

10(A): Powers of the Commission � i)

Where any complaint I received by the

Commission under clause (a) or clause

(f) of sub-section (1) of Section 10, or

in respect of any other matter, the

Commission may before issuing any

processing requiring the attendance of

the person complained against, by an

Existing Provisions

1


2


3

(63)

order, require the Commissioner to make

or cause to be made, a preliminary

investigation in such manner as it may

direct and submit a report to the

Commission to enable it to satisfy itself

as to whether or not the complaint

requires to be inquired into or that any

other action is to be required to be

taken. ii) The powers of investigations

vested with the Commission shall be

delegated to the Commissioner

whenever required and to the extent

necessary. iii) For the purpose of

conducting the preliminary investigation

under sub-section (1), the Commissioner

hall have the same power as may be

exercised by an officer of police making

an investigation under the Code of

Criminal Procedure, 1973. iv) Any order

or requisition made by a person making

an investigation under sub-section (1)

shall be enforced in the same manner

as if it were an order of requisition

made by a police officer under the

provisions of the Code of Criminal

Procedure, 1973. Sub-section 10 (b):

Enforcement Powers of Commission �

i) In making any order under this Act,

the Commission may make such

provisions not inconsistent with this Act,

as it may think necessary or desirable

for the proper execution of the order

and nay person who commits a breach

of, or fails to comply with, any obligation

imposed on him by any such provision

shall be deemed to be guilty of an

offence under this Act. ii) Any order

Existing Provisions

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(64)

made by the Commission may be

amended or revoked at any time. Sub-

section 10(C): Powers of the

Commission to cause investigation - i)

The Commission may, if it has any

reasonable cause to believe that any

person has omitted or failed to comply

with any order made by it under this

Act or of any obligation imposed on

him by or under any order made by

the Commission under this Act,

authorize the Commission to make an

investigation into the matter and the

Commissioner may, for the purpose of

making such investigation, exercise all

or any of the powers delegated by the

Commission under Section 10A.

Section 15: Chairperson, Members and

Staff of the Commission to be public

servants � After the words �the

Members� the words �the Commissioner�

shall be inserted.

Insertion of new Section 16A, 16B, 16C

and 16D: The following sections shall

be inserted � Section 16A: Penalty for

offences in relations to furnishing of

information - i) if any person fails,

�without any reasonable cause to appear

or to produce any books, documents

or papers, or to furnish any information

required by the Commissioner under

Section 10A or under any other

provisions of this Act, �he/she shall be

punishable with imprisonment for a term

which may extend to three months or

with fine which may extend to two

Existing Provisions

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3

(65)

thousand rupees or with both, and where

the offence is a continuing one, with a

further fine which may extend to one

hundred rupees for every day, after the

first, during which such failure continues.

ii) If any person who fails to appear or

furnish, or is required to furnish, any

particulars, documents or any

information viz; a) makes any statement

or furnishes any document which he

knows or has reason to believe it to be

false in any material particular; b) omits

to state any material fact knowing it

to be material; and c) willfully alters,

suppresses or destroys any document

which is required to be furnished as

aforesaid � �shall be punishable with

imprisonment for a term which may

extend to six months and with fine which

may extend to five thousand rupees.

Section 16B: Penalty for offences in

relation to orders under this Act: i) A

persons who is deemed, under sub-

section (1) of Section 10B, to be guilty

of an offence under this Act, shall be


which may extend to five thousand

rupees or with both and where the

offence is a continuing one, with a

further fine which may extend to five

hundred rupees for every day after the

first, during which such contravention

continues. ii) If any person contravenes

without any reasonable cause, any order

made by the Commission or the

Commissioner, shall be punishable with

imprisonment for a term which shall

Existing Provisions

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(66)

not be less than � a) in the case of

first offence, six months but which may

extend to two years; and b) in the case

of any second and subsequent offence,

two years but which may extend to five

years; and in either case where the

contravention is a continuing one, also

with fine which may extend to five

hundred rupees for every day, after the

first, during which such contravention

continues. Provided that the Court may,

if it is satisfied that the circumstances

of any case so require, impose a

sentence of imprisonment for a term

lesser than the minimum term specified

in this Section. Section 16C: Jurisdiction

of Courts to try offences - No Court

inferior to that, of the High Court shall

try any offence under this Act and any

person aggrieved by any decision or

order of the Commission, in any matter,

may file an application in the High

Court. Section 16D: Protection of action

taken in good faith - No suit,

prosecution or other legal proceedings

shall be against the Commission, or

any member, Commissioner, officer or

servant of the Commission in respect

of anything which is in good faith done

or intended or remained to be done

under this Act.

The Status of the Chairperson and

Members of the Commission: The

Commission suggested that the

Chairperson of NCW be given the status

of the Union Cabinet Minister and the

Members that of Minister of State.

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(67)

Existing Provisions

1

Section 12: Duty of District Magistrate

and Officers authorized by him.

Section 13: Vigilance Committees - i)

Every State Government shall by


constitute such number of Vigilance

Committees in each district and each

Sub-Division as it may think fit. ii)

Each vigilance Committee, constituted

for a district, shall consist of the

following members, viz; a) the District

Magistrate, or a person nominated by

him, who shall be the Chairman; b)

three persons belonging to the

Scheduled Castes or Scheduled Tribes

and residing in the district, to be

nominated by the District Magistrate;

and c) two social workers, resident in

the district, to be nominated by the

District Magistrate. Explanation: Not

more than three persons to represent

the official or non-official agencies in

the district connected with rural

development, to be nominated by the

State Government. D) one person to

represent the financial and credit

institutions in the district, to be

nominated by the District Magistrate.

iii) Each Vigilance Committee,

constituted for a Sub-Division, shall

consist of the following members viz

a) The Sub-Divisional Magistrate, or

person nominated by him, who shall


2

Section 12: Insertion of new Section

12A � I) �Punishment for neglect of

duties� - Any authority/public servant

entrusted with the implementation of

this Act, who willfully neglects his duties

required to be performed by him under

this Act, the State Government shall

denotify such authority/public servant.

II) Insertion of the words �of whom one

shall be a woman� in clause (b), (c),

and (d) of sub-section ( 2 ) and (3) of

section 13. Sub-section (2): Clause (b)

will read as � �three persons, of whom

one shall be a woman, belonging to

the scheduled Castes and scheduled

Tribes and residing in the district, to

be nominated by the District Magistrate�.

Clause (c) will read as � �two social

workers, of whom one shall be a woman,

resident in the district, to be nominated

by the District Magistrate�. Clause (d)

will read as � �not more than three

persons, of whom one shall be a woman,

to represent the official or non-official

agencies in the district connected with

rural development, to be nominated by

the State Government�. Sub-section (3):

Clause (b) will read as � � Three persons,

of whom one shall be a woman,

belonging to the Scheduled Castes or

Scheduled Tribes and residing in the

Sub-Division, to be nominated by the

Sub-Divisional Magistrate�. Clause (d) will


3

Section 12 ( I ) : To ensure enforcement

of law, specially a social welfare law,

the implementing machinery should be

made accountable for non-

implementation.

Section 12 (II) : Women should also

have a say in the implementation of

the law. Representation of women in

the Vigilance Committees will not only

have better understanding of the

problems of women and girl children

freed from bondage but will also be

able to provide better schemes for

rehabilitation of such women and girl

children.

Section 12 (III): Women should also

have a say in the implementation of

the law. Women on the Vigilance

Committees will not only have better

understanding of the problems of women

and girl children freed from bondage

but will also be able to provide better

schemes for rehabilitation of such

women and girl children.

Section 14 Sub-clause (b): The needs,

problems and difficulties of the males

freed from bondage are different from

those of the females liberated from

bonded labour. Hence, the rehabilitation

schemes for the males should be

different, distinct and separate from

the schemes for the females. Further,

THE BONDED LABOUR SYSTEM (ABOLITION) ACT, 1976

(68)

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be the chairman, b) three persons

belonging to the Scheduled Casts or

Scheduled Tribes and residing in the

Sub-Division, to e nominated by the Sub-

Divisional Magistrate; c)two social

workers, resident in the Sub-Division,

to be nominated by the Sub-Divisional

Magistrate; d) not more than three

persons to represent the official or non-

official agencies in the Sub-Division

connected with rural development to

be nominated by the District Magistrate

and e) one person to represent the

financial and credit institutions in the

Sub-Division, to be nominated by the

Sub-Divisional Magistrate.

Section 14: Functions of Vigilance

Committees � i) To functions of each

Vigilance Committee shall be � a) To

advise the District Magistrate or any

officer authorized by him as to the

efforts made, and action taken to ensure

that the provisions of this Act or of

any rule made thereunder are properly

implemented; b) To provide for the

economic and social rehabilitation of

the freed bonded labourers; c) to �

coordinate the functions of rural banks

and cooperative societies with a view

to analyzing adequate credit to the freed

bonded labourer; d) to keep an eye on

the number of offences of which

organizance has been taken under this

Act; e) to make a survey as to whether

there is any offence of which cognizance

read as � �not more than three persons,

of whom one shall be a woman, to

represent the official or non-official

agencies in the Sub-Division connected

with rural development to be nominated

by the district Magistrate.� III)

Substitution of clauses (b), (d), and ( e

) of sub-section (I) of section of section

14 and insertion of new clauses (bb),

(bbb), (bbbb), ( cc ) and (g) of sub-

section (I).

For clause (b) following clause will be

substituted - �to provide for the

economic and social rehabilitation of

the freed bonded labourer, however,

that the rehabilitation scheme may

provide for individual or collective

rehabilitation and further that there may

be separate rehabilitation scheme for

the freed bonded made labourers, freed

bonded female labourers, members of

the family of the freed bonded labourer

or any other persons dependant on the

freed bonded labourer.�

After clause (b) following clauses will

be inserted � (bb) �to provide socio-

economic rehabilitation and training to

sexually exploited women and children�.

(bbb) �to promote education and

vocational schemes for the girl children

freed from bonded labour.� (bbbb) �to

encourage the beneficiaries to participate

in the various rehabilitation, educational

and vocational programmes, including

the selection of the schemes�.

freed bonded labourers may be

rehabilitated in group as it is difficult

to rehabilitate and individual isolation.

A girl child is bondage suffers the most.

Bonded labour and home responsibilities

prevent her from getting any education.

Lack of access to education ensures

continuation of the cycle of poverty

which in turn leads to further bondage.

Section 18: To deter the person from

extracting bonded labour, it is imperative

that, in addition to imposing punishment

on him, he should not be allowed to

reap the fruits obtained from bonded

labour. Hence such property should

be forfeited. A general complaint is

that no fine is recovered from the person

employing bonded labour. In event of

failure to recover the fine, such fine

may be recovered from the property

attached.

It is observed that even though a man

is a bonded labourer, his whole family,

including his wife, daughter aged

mother, etc. are forced to work in

bondage. Hence, each such person in

bondage should be entitled to payment

at the rate of rupees ten per day.

Section 18 A: To deter the person from

violating the provisions of the Act and

to punish him in the event of violation.

Section 18 B: To deter the person from

violating the provisions of the Act and

to punish him in the event of violation.

(69)

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3

ought to be taken under this Act; f) to

defend any suit instituted against a freed

bonded labourer or a member of his

family or any other person dependent

on him for the recovery of the whole

or part of any bonded debt or any other

debt which is claimed by such persons

to be bonded debt. ii) A VIGILANCE

Committee may authorize one of its

members to defend a suit against a

freed bonded labourer and the member

so authorized shall be deemed, for the

purpose of such suit, to be the

authorized agent of the freed bonded

labourer.

Section 18: Punishment for extracting

bonded labour under bonded labour

system �i) Whoever enforces after the

commencement of this Act, any custom,

tradition, contract, agreement or other

instrument, by virtue of which any person

or any member of the family of such

person or any dependant of such person

is required to render any service under

the bonded labour system, shall be


which may extend to three years and

also with fine which may extend to two

thousand rupees; and, out of the fine,

if recovered payment shall be made to

the bonded labourer at the rate of

rupees five for each day for which the

bonded labour was extracted from him.

Section 22: Cognizance of offences �

Every offence under this Act shall be

cognizable and bailable

After clause ( c ) following clause will

be insert ed - ( cc ) �to co-relate and

integrate the functions of the rural banks

and women�s agencies such as Mahila

Mandals, women�s groups, women�s

development corporations with a view

of channelising sufficient credit to the

freed bonded women labourer �.

For clause (d) following clause will be

substituted - � to keep an eye on the

number of offences committed against

the bonded male labourer, bonded

female labourer and bonded (girl) child

labourer, of which cognizance has been

taken under this Act�.

For clause ( e ) following clause will be

substituted - �to make a survey as to

whether there is an offence committed

against the bonded male labourer,

bonded female labourer and bonded

(girl) child labourer, of which cognizance

ought to have been taken under this

Act.�

Clause ( f ) will be deleted and sub-

section (2) will be substituted in this

respect and a new clause ( g ) will be

inserted - �to set up awareness centers

and organize workshops in identified

areas to educate the bonded women

and the girl children labourers of the

protection available to them under this

Act and the schemes framed thereunder�.

For Sub-section ( 2 ) following sub-

section shall be substituted - �No suit

(70)

Existing Provisions

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will be instituted against a freed bonded

labour or a member of his family or

nay other person dependent on him

for the recovery of the whole or part

of any bonded debt or any other debt

which is claimed by such person to be

bonded debt.�

After Section 16 a new section 16A

will be inserted - �Punishment for sexual

exploitation - � Whoever after the

commencement of the Act, sexually

exploits or trafficks women or child

bonded labour the employer shall be

punished with imprisonment for a term

which may extend to three years and

also with fine which may extend to

twenty thousand rupees. The onus of

proof that no sexual exploitation or

trafficking has taken place would be

on the accused.�

For section 18 following will be

substituted - � i) Whoever enforces,

after the commencement of this Act,

any custom, tradition, contract,

agreement or other instrument by virtue

of which any person or any member of

the family of such person or any

dependant of such person is required

to render any service under the bonded

labour system, shall be punishable with

imprisonment for a term which may

extend to three years and also with a

fine. ii) When any person is accused of

an offence punishable under sub-section

(I) , it shall be open to the Court, trying

(71)

Existing Provisions

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3

him, to pass an order that all or any of

the properties, moveable or immovable

or both, belonging to him, shall, during

the period of such trial, be freezed and

restrained and where such trial ends in

conviction, and if the imposed fine is

not forthcoming, the properties so

attached shall be liable to forfeiture to

the extend they are required for the

purpose of realization of the fine

imposed. iii) Any court convicting the

person under sub-section (I), may in

addition to awarding the punishment,

by order in writing, declare that any

property, moveable to immovable or

both, belonging to such a person, for

which bonded labour was extracted, shall

stand forfeited to the Government to

the extend to the fine. iv) Out of the

fine realized, payment shall be made

to be bonded labourer at the rate of

the current minimum wage for each day

for which bonded labour was extracted

from him. V) For avoidance of doubt,

it is here clarified that where any bonded

labour was extracted from any member

or any dependant of such bonded

labourer, each such member or

dependant of the bonded labourer shall

also be entitled to payment at the rate

of current minimum wage for each day

of which bonded labour was extracted

from him.�

After Section 18 following sections will

be inserted � Insertion of new section

(72)

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3

18A � Cancellation or suspension of

license in certain cases � � When a

person who is convicted of any offence

under section 18 holds any licence,

permit or permission under any law for

the time being in force in respect of

any profession, trade, calling or

employment in relation to which bonded

labour was extracted, the Court trying

the offence may, without prejudice to

any other penalty to which such person

may be liable, direct that the licence,

permit or permission shall stand cancelled

or suspended for such order so canceling

or suspending the licence, permit or

permission shall have effect as if it had

been passed by the authority competent

to cancel or suspend the licence, permit

or permission under any such law.�

Insertion of new section 18 B �

Resumption or suspension of grant made

by Government � �When a person,

convicted of an offence under S.18, is

in receipt of a grant of land or money

from the Government, the Government

may, if in its opinion the circumstances

of the case warrant such a course, direct

the resumption or suspension of the

whole or any part of such grant.�

For Section 22 the following Section

will be substituted - �Every offence

under this Act shall be cognizable and

non-bailable.�

(73)

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1

Section 5: No discrimination to be

mad while recruiting men and women

workers � On and from the

commencement of this Act, no employer

hall while making recruitment for the

same work or work of a similar nature,

(or in any condition of service

subsequent to recruitment such as

promotions, training or transfer), make

any discrimination against women except

where the employment of women in such

work is prohibited or restricted by or

under any law for the time being in

force - Provided that the provisions of

this section shall not affect any priority

or reservation for Scheduled caste or

Scheduled Tribes, ex-servicemen,

retrenched employees or any other class

or category of persons in the matter

of recruitment to the posts in an

establishment of employment.

Section 7: Power of appropriate

Government to appoint authorities for

hearing and deciding claims and

complaints - i) the appropriate

Government may, by notification,

appoint such officers, not below the

rank of a Labour Officer, as it thinks

fit to be the authorities for the purpose

of hearing and deciding. a) Complaints

with regard to the contravention of any

provision of this Act. b) Claims arising

out of non-payment of wages at equal


2

Section 5: For the words, �except where

the employment of women in such work

is prohibited or restricted by or under

any law for the time being in force�

following words will be substituted -

�except where the employment of

women in such work is likely to physically

or psychologically affect her �.

This section will read as - �On and

from the commencement of this Act,

no employer shall while making

recruitment for the same work or work

of a similar nature, (or in any condition

of service subsequent to recruitment

such as promotions, training or transfer),

take any discrimination against women

�except where the employment of

women in such work is likely to physically

or psychologically affect her �.

Section 7 Sub � section (1): For the

words � �the appropriate Government

may by notification, such officers, not

below the rank of a Labour Officer� -

the following words shall be substituted

�The appropriate Government may, by

notification, appoint women officers

having experience of not less than 5

years in Labour Practice.�

This section will read as - (1) �The

appropriate Government may, by

notification, appoint women officers

having experience of not less than 5


3

Section 5: Under Section 5 women are

prohibited or restricted by law to take

up certain employment or to take up

the employment during particular hours

of the day. It is high time that the list

of the category of the work, wherein

women are prohibited or restricted by

law from taking the work is pruned

down, unless the same is hazardous

and threatens the life and limp of the

women. Today, the women are giving

effective competition to men in different

sphere of activity and has proven

themselves. If the restrictions are not

removed or significantly curtailed, then

they are likely to be challenged on the

ground of discrimination and violation

of Article 14 of the Constitution.

Section 7: Section 7 relates to the

officer manning the adjudicatory body.

It is the first point of contact for the

aggrieved party. The Act provides for

a Labour Officer to hear the complaint

relating to contravention of any

provisions of the Act of non-payment

of equal wages. Since the complaints

primarily emanates from Women section

of the employees it is of utmost

important that the adjudicatory authority

should provide assurance and should

inspire confidence of aggrieved party.

For this reason, the Labour Officer who

has been empowered under this Section

THE EQUAL REMUNERATION ACT, 1976

(74)

Existing Provisions

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rates to men and women or work of a

similar nature; and may , by the same

or subsequent notification, define the

local limits within which each such

authority shall exercise its jurisdiction.

ii) Every complain or claim referred to

in sub-section (1) shall be made in such

manner as may be prescribed. iii) If

any question arises as to whether two

or more works are of the same nature

or of a similar nature, it shall be decided

by the authority appointed under sub-

section (1). iv) Where a complain��

v) Every authority appointed under sub-

section (1) shall have all the powers of

a Civil Court under the Code of Civil

Procedure, 1908 (5 of 1908), for the

purpose of taking evidence and of

enforcing the attendance of witnesses

and compelling the production of

documents, and every such authority

shall be deemed to be a Civil Court for

all the purposes of section 195 and

Chapter XXVI of the Code of Criminal

Procedure, 1973 (2 of 1974).

Section 10: Penalties (1) - If after

the commencement of this Act, any

employer, being required by or under

the Act so to do �a)��,

b)��, c��.., d)�.he shall be

punishable (with simple imprisonment

for a term which may extend to one

month or with fine which may extend

to ten thousand rupees or with both).

ii) ��.., iii)��..

years in Labour Practice� as it thinks

fit to be the authorities for the purpose

of having and deciding -��., ��..

For sub-section (2) following will be

substituted � �The complain or claim

referred to in sub-section (1) can be

taken cognizance either suo -moto by

the officers appointed under Section

7(1) or at the instance of voluntary

agencies or person aggrieved in such

manner as may be prescribed�.

Note: Though, the adjudicatory authority

has been provided power under Section

7(5) of the Civil Court for the purpose

of taking evidence and enforcing

attendance of witness and compelling

the production of documents. But he

adjudicatory authority has not been

provided any power to enforce its order

under the Act. For any adjudicatory

authority to be effective, it has to be

provided sufficient teeth. It is necessary

for proper and effective functioning of

the adjudicatory authority that it is

provided power of enforcement of its

order and in case of failure by the

employer, then it should have power to

impose penalty.

Section 10: After sub-section (3) a mew

sub-section (4) shall be added - �where

an employer or a person against whom

a complaint is made falls or omits to

comply with any order made by the

office under Section 7(1), such employer

should be a women with background

of Labour practices.

The power of filing complaint should

not be confined only to the aggrieved

party. It has to be broad based on any

information relating to contravention

of the Act must be entertained. For

this reason, two changes are necessary

under Section 7. Firstly, if any person

including voluntary organisation reports

of any contravention of provisions of

the Act, the same should be treated

as a complain and the adjudicatory

authority should dispose of the same

as per law. Secondly, if the Labour

Officer or whosoever, is the adjudicatory

authority get some information or

knowledge about any practice by the

employer which is in contravention of

the Act, then it should have power of

registration of complaint upon its own

knowledge and information. These

amendments are also necessary as the

employees are likely to be reluctant to

lodge any complain against their present

employer, least they face the wrath of

employer.

Section 10: Providing a penal clause

against the person who does not comply

with the order made by the officer under

Section 7 (1).

Section 15: Section 15 deals with special

benefits given to the women. It is

necessary that the explanation be

(75)

Section 15: Act not to apply to certain

special cases - Nothing in this Act

shall apply � a) to cases affecting the

terms and conditions of a women�s

employment in complying with the

requirements of any law giving special

treatment to women, or b) to any

special treatment accorded to women

in connection with � i) the birth or

expected birth of a child , or ii) the

terms and conditions relating to

retirement, marriage or death or to any

provision made in connection with the

retirement, marriage or death.

or person shall be punishable with

imprisonment for a term which shall not

be less than one month but which may

extend to one year, or with fine which

shall not be less than Rs.10,000/- but

which may extend to Rs.20,000/- or with

both. Provided that the officer it

satisfied that the circumstances of any

case so require, impose a sentence of

imprisonment or fine, or both, for a

term lesser then the minimum term and

the amount lesser then the minimum

amount, specified in this sub-section�

for reason to be record in writing.

Section 15: After Section 15, the

following explanation will be added -

�Explanation� the special treatment given

either under this Act, or any other Act

for the time being in force will not be

detrimental to the interest of the

woman. Special treatment clause should

ensure that any act or omission of this

Act shall not be detrimental to the

interest of the woman.

incorporated in the Section, wherein it

should be provided that the special

treatment should never be detrimental

to the interest of the women.

Existing Provisions

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3

(76)

Existing Provisions

1

Section 2: Definition � In this Act, unless

the contest otherwise requires � b)

�degree of prohibited relationship� - a

man and any of the persons mentioned

in Part I of the First Schedule and a

woman and any of the persons

mentioned in Part II of the said Schedule

are within the degrees of prohibited

relationship�. Explanation - I -

Relationship includes a) relationship of

half or uterine blood as well as by full

blood; b) illegitimate blood relationship

as well as legitimate; c) relationship

by adoption as well as by blood; and

all terms of relationship in this Act shall

be construed accordingly. Explanation

II � �Full blood� and �Half blood� � two

persons are said to be related to each

other by full blood when they are

descended from a common ancestor

by the same wife and by half blood

when they are descended from a

common ancestor but by different wives.

Explanation III - Uterine blood� two

persons are said to be related to each

other by uterine blood when they are

descended from a common ancestress

but by different husbands. Explanation

� IV � In explanations II and III

�ancestor � includes the father and

�ancestres� the mother. D) �district� in

relation to a Marriage Officer, means

the area for which he is appointed as


2

Section 2: Definition - �Only District

courts and Higher Courts have jurisdiction

to deal with the matrimonial cases�.

Section 4: Conditions relating to

solemnization of special marriages �

Section 4 ( b ) (iii) shall be deleted.

After Section 4 a new section 4A shall

be inserted as follows: - i) �No person,

married under the provision of this Act,

shall contract any marriage under any

law in the life time of his or her wife

or husband, except after his or her lawful

divorce from such wife or husband or

after his or her marriage with such wife

or husband has lawfully been declared

null and void or dissolve under this Act.

ii) Every marriage contracted contrary

to the provisions of sub section i) shall

be void for the pruposes of sections 24

and 44 of the Act�.

Section 5: Notice of intended marriage

- For the words � not less than thirty

days� the words � not less than fifteen

days� shall be substituted in this section.

This section will read as ; � When a

marriage is intended to be solemnized

under this Act, the parties to the

marriage shall give notice thereof in

writing in the form specified in the

Second Schedule to the Marriage Officer

of the district in which at least one of

the parties to the marriage has resided


3

Section 2: Explanation IV ( e ) states

that �District Court� includes in areas

where there is no city civil court, the

principle civil court of original

jurisdiction. Would this also include a

munsif�s court? The question is relevant

because of �District Court� were to

include even a munsif�s court then it

would mean that the latter has the

jurisdiction to deal with matrimonial

causes under the SMA.

Section 4: Section iii) �Epilepsy is not

a condition that prevents an individual

from fulfilling his or her marital

obligations. Further with advances in

medicine it is controllable. This has

already been recommended by the Law

Commission and this recommendation

is endorsed. In order to combat the

mischief of motivate decoversions, which

enable husband married under

monogamous laws to convert to a

religion permitting polygamy. Motivated

conversions in order to enter into

polygamous relationship are well known.

Section 5: Notice of intended marriage

- It is felt that the period of 30 days

is to long and unnecessary delay the

proceeding. � It should be reduced to

15 days�.

Section 15: Registration of Marriages

celebrated in other forms - From

THE SPECIAL MARRIAGE ACT, 1954

(77)

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such under sub-section (1) or sub-

section (2) of Section 3. e) �district

court� means, in any are for which there

is a city civil court, that court, and in

any other area, the principal civil court

of original jurisdiction, and includes any

other civil court which may be specified

by the State Government by notification

in the Official Gazette as having

jurisdiction in respect of the matters

dealt with in this Act.


solemnization of special marriages - �

Not - withstanding anything contained

in any other law for the time being in

force relating to the solemnization of

a marriages, a marriage between any

tow persons may be solemnized under

this Act, if at the time of the marriage

the following conditions are fulfilled,

viz a) neither party has a spouse living;

b) neither party - i) is incapable of

giving a valid consent to it in

consequence of unsoundness of mind

or ii) through capable of giving a valid

consent, has been suffering from mental

disorder of such a kind or to such an

extent as to be unfit for marriage and

the procreation of children; or iii) has

been subject to recurrent attacks of

insanity or epilepsy.


celebrated in other forms - �Any

marriage celebrated, whether before or

after the commencement of this Act,

for a period of not less than fifteen

days immediately preceding the date

on which such notice is given�.


celebrated in other forms - The

Following Clause shall be substituted

for Clause ( c ) - �( c ) neither party

is of unsound mind at the time of

registration.� And the following Clause

shall be substituted for Clause ( d )

�the male has completed 21 years and

the female the age of 18 years.� A

new clause ( g ) shall be inserted after

clause (f). � Clause ( g ) - �After the

registration of marriage under this Act,

both the parties will be governed by

the provisions of this Act and a decree

of divorce under this Act will dissolve

the pre-existing marriage�.

Section 19: Effect of marriage on

member of undivided family The Section

shall be deleted.

Section 22: Restitution of Conjugal

Rights - The Section shall be deleted.

Section 23 - Judicial Separation -

�Clause (b) of Section 23 (i) shall be

deleted.

Section 27: Divorce - For Clause (f)

following Clause shall be substituted -

�has been suffering from venereal

disease in a communicable form; for a

period not less than two years�. After

Clause ( f ) a new clause ( ff ) shall be

registration under the Act of marriages

celebrated in other forms both parties

have to have completed 21 years of

age. There is a discrepancy between

this and registration of marriages

solemnized under the Act where the

girl needs only to be 18 years and the

groom 21.


member of undivided family - Just

only because of the marriage has been

solemnized under this Act should not

have effect on his from such family.


Rights - As it violates the rights of

privacy.

Section 23: Judicial Separation -

�Consequential amendment with respect

to amendment suggested in Section 22.�

Section 27: Divorce - Section 27 (h)

� As available in the Hindu Marriage

Act, 1955, this condition also needs to

be incorporated in this Act as a ground

for divorce. Section 27 (3) �

Consequential amendment with respect

to Section 22. Irretrievable breakdown

of marriage should be added as a

ground for divorce. This provision will

end deadlock in marriage and give a

decent trail to a practically dead

relationship.

Section 30: The parties of the marriage

should have sufficient time to take a

(78)

Existing Provisions

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other than a marriage solemnized under

the Special Marriage Act, 1872 (III of

1872) or under this Act, may be

registered under this Chapter by a

Marriage Officer in the territories to

which this Act extends if the following

conditions are fulfilled, viz; a) a

ceremony of marriage has been

performed between the parties and they

have been living together as husband

and wife ever since; b) neither party

has at the time of registration more

than one spouse living; c) neither party

is any idiot or a lunatic at the time of

registration; d) the parties have been

completed the age of twenty-one years

at the time of registration and e) the

parties are not within the degrees of

prohibited relationship � Proved that

in the case of a marriage celebrated

before the commencement of the Act,

this condition shall be subject to any

law, custom or usage having the force

of law governing each of them which

permits of a marriage between the two;

and f) the parties have been residing

within the district of the Marriage Officer

for a period of not less than thirty days

immediately proceeding the date of

which the application is made to him

for registration of the marriage.


member of undivided family - � The

marriage solemnized under this Act of

any member of an undivided family who

inserted. �( ff ) has been suffering from

HIV/AIDS.� Clause ( g ) shall be deleted.

In clause ( h ) for the words � seven

years� the words �three years� shall be

substituted. This clause shall read as

- (h) has not been heard of as being

alive for a period of seven years or

more by those persons who would

naturally have heard of the respondent

if the respondent had been alive. After

Clause (h) of Section 27 (1) the followng

clause shall be inserted: - i) �has

renounced the world by entering any

religious order�. Clause ii) of Sub-Section

2) of Section 27 shall be deleted. A

new sub-section 3) shall be inserted

in clause 27 - �If the court is of the

opinion that the marriage has broken

down and the parties cannot happily

live together, it may, at the instance

of either party to the marriage, after

making adequate financial and other

welfare provisions for children of the

marriage and the wife, dissolve the

marriage.�

Section 30: Remarriage of divorced

persons - An explanation shall be

added after this section as follows:

Explanation - There shall atleast 90

days time period for appealing against

a decree of divorce for the purpose of

this section.

Section 31: Court to which petition

should be made - An explanation shall

be inserted after Section 31 ( I ) as

decision and to appeal against the

decree. It is normally observed that

the party of the marriage rush for

second marriage without waiting for an

appeal.

Section 31 (1): It is quite possible that

a woman suing for divorce is not staying

in the place where her husband resides

which is often the place where they

last resided together. The provision

seems to be disadvantageous to a wife

suiting for divorce/nullity of marriage

as it present her for presenting a petition

at the location that is convenient to

her.

Section 33: Proceeding to be in camera

and may not be printed or published -

�Sub-section 33 (ii) - These

proceedings which relate to judicial

separation/divorce/custody of children

are likely to be sensitive and private

nature. Publicizing the same would

amount to a violation of the Right to

Privacy of the individuals concerned,

and Rs.1000 fine is too light a fine, in

view of the damage that a person may

suffer and which cannot be

compensated through any defamation

action.


maintenance - Any obligations of

fidelity only exit when the husband and

wife are married and not after the

divorce. The ground of chastity to

(79)

Existing Provisions

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3

professes the Hindu, Buddhist, Sikh or

Jaina Region shall be deemed to effect

his severance from such family.�


Rights � �When either the husband or

the wife has, without reasonable excuse,

withdrawn from the society of the other,

the aggrieved party may apply to petition

to the district court for restitution of

conjugal rights, and the court, on being

satisfied of the truth of the statements

made in such petition, any that there

is no legal ground why the application

should not be granted, may decree

restitution of conjugal rights accordingly.

Explanation � �Where a question arises

whether there has been reasonable

excuse for withdrawal from the society,

the burden of proving reasonable excuse

shall b on the person who has withdrawn

from the society.

Section 23: Judicial separation - � (1)

(b) on the ground of failure to comply

with a decree for restitution of conjugal

rights.

Section 27: 1) Subject to the provisions

of this Act and to the rules made

thereunder, a petition for divorce may

be presented to the district court either

by the husband, or the wife on the

ground that the respondent - a) has,

after the solemnization of the marriage,

had voluntary sexual intercourse with

any person other than his or her spouse;

follows � In case where the wife is the

petitioner, she shall file a petition under

Chapter V and VI from the pace where

she is currently staying�.

Section 33: For Sub-section ii) of

Section 33 the following section shall

be substituted - If any person prints

or publishes any matter in contravention

of the provisions contained in sub-section

i), he shall be punishable with fine

according to the circumstances for the

case and parties involved, which may

not be less than Rupees ten thousand

in any case�.


maintenance - the words �or is not

leading a chaste life� in Section 37 (

3)shall be deleted. The section will

read as: �(3) - If the district court is

satisfied that the wife in whose favour

an order has been made under this

section has remarried (it may, at the

instance of the husband vary, modify

or rescind any such order and in such

manner as the court may deem just)�.

revoke an order of permanent

maintenance is unfair and uncalled for

interference in the wife�s life.

Note :

i) Concept of illegitimate children be

deleted.

ii) Mandatory medical examination of

the parties of marriage may be suggested

keeping spreading of HIV� in mind

iii) The marriage registration

procedure under the Act should be

simplified.

iv) The appointment of Marriage

Officers, under section 3, should be

ensured in sufficient number and it

should be publicized.

v) Tow Muslims who marry each other

under this Act too should be allowed

to opt whether to be governed by the

Muslim Law or the Indian Succession Act.

This will help in popularizing marriages

under the Act. This option may be

given in writing at the time of marriage.

Punishment for bigamy should be

enhanced suitably.

(80)

Existing Provisions

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3

or b) has deserted the petitioner for a

continuous period of not less than two

years immediately proceeding the

presentation of the petition or d) c) is

undergoing a sentence of imprisonment

for seven years or more for an offence

as defines in the Indian Penal Code; d)

has since the solemnization of the

marriage treated the petitioner with

cruelty; of e) has been incurable of

unsound mind, or has been suffering

continuously or intermittently from

mental disorder of such a kind and to

such an extent that the petitioner cannot

reasonably be expected to live with the

respondent. Explanation - In this

clause - ´a) the expression �mental

disorder� means mental illness, arrested

or incomplete development of mind,

psychopathic disorder or any other

disorder or disability of mind and

includes schizophrenia; b) the

expression �psychopathic disorder �

means a persistent disorder or disability

of mind (whether or not including sub-

normality of intelligence) which results

in abnormally aggressive or seriously

irresponsible conduct on the part of

the respondent, and whether or not it

requires or is susceptible to medical

treatment; or f) has been suffering from

venereal disease in a communicable

from; or g) has been suffering from

leprosy, the disease not having been

contracted from the petitioner; or h)

has not been heard of as being alive

(81)

Existing Provisions

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3

for a period of seven years or more by

those persons who would naturally have

heard of the respondent if the

respondent had been alive.

Section 30: Remarriage of divorced

persons - �Where a marriage has been

dissolved by the decree of divorce, and

either there is no right of appeal against

the decree or if there is such a right of

appeal, the time for appealing has

expired without any appeal having been

presented, or an appeal has been

presented but has been dismissed, either

party to the marriage may marry again.

Section 31: Court to which petition

should be made - 1) Every petition

under Chapter V or Chapter VII shall

be presented to the district court within

the local limits of whose original civil

jurisdiction - i) the marriage was

solemnized; or ii) the respondent, at

the time of the presentation of the

petition resides; or iii) the parties to

the marriage last resided together; or

iv) the petitioner is residing at the time

of the presentation of the petition, in

a case where the respondent is at that

time residing outside the territories to

which this Act extends, or has not been

heard of as being alive for a period of

seven years by those who would naturally

have heard of him if he were alive.

Section 33: Proceeding to be in camera

and may not be printed or published -

(82)

� i) Every proceeding under this Act

shall be conducted in camera and it

shall not be lawful for any person to

print or publish any matter in relation

to any such proceeding except a

judgement of the High Court or any of

the Supreme Court printed or published

with the previous permission of the

Court, ii) If nay person prints or

publishes any matter in contravention

of the provisions contained in sub-

section (1) he shall be punishable with

fine which may extend to one thousand

rupees.


maintenance - 1) Any Court exercising

jurisdiction under Chapter V or Chapter

VI may, at the time of passing any

decree or at any time subsequent to

the decree, on application made to it

for the purpose, order that the husband

shall secure to the wife for her

maintenance and support, if necessary,

by a charge on the husband�s property,

such gross sum or such monthly or

periodical payment of money for a term

not exceeding her life, as, having regard

to her own property, if any, her

husband�s property and ability (the

conduct of the parties and other

circumstances of the case), it may seem

to the court to be just. 2) If the district

court is satisfied that there is a change

in the circumstances of either party at

any time after it has made an order

Existing Provisions

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3

(83)

Existing Provisions

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3

under sub-section 1), it may, at the

instance of either party, vary, modify

or rescind any such order in such manner

as it may seem to the court to be just.

3) If the district, court is satisfied that

the wife in whose favour an order has

been made under this section has re-

married or is not leading a chaste life,

(it may, at the instance of the husband

vary, modify or rescind any such order

and in such manner as the court may

deem just).�

(84)

Existing Provisions

1

Section 2: Definition - 1) In this Act,

unless the contest otherwise requires -

a) � appropriate Government� means:

- i ) in relation to - 1) ��., 2)��.

, 3)��. ii) in relation to any other

establishment, the Government of the

State in which that other establishment

is situated. b)��, c)��., d)

establishment means � i) �.., ii)��.

e) �Inter-state migrant workman� means

any person who is recruited by or

through a contractor in one State under

an agreement or other arrangement for

employment in an establishment in

another State, whether with or without

the knowledge of the principal employer

in relation to such establishment. f)�..,

g) �principal employer� means � i)�.,

ii)��, iii)��., iv)�� h)��,

I)��., j) �workman� means any

person employed in or in connection

with the work of any establishment to

do any skilled, semiskilled or unskilled,

manual, supervisory, technical or clerical

work for hire or reward, whether the

terms of employment by express or

implied, but does not include any such

person - i) who is employed mainly in

a managerial or administrative capacity

or ii) who, being employed in a

supervisory capacity, draws wages

exceeding five hundred rupees per


2

Section 2: In clause ( e ) of Section at

the end after the words �Principal

Employer in relation to such

establishment� the following words shall

be added � �ór any workman who is

directly employed by the principal

employer from a state other than the

one in which the employer �s

establishment is situated�. This section

will read as - �Inter-state migrant

workman� means any person who is

recruited by or through a contractor in

one State under an agreement or other

arrangement for employment in an

establishment in another State, whether

with or without the knowledge of the

principal employer in relation to such

establishment; or any workman who is


employer from a state other than the

one in which the employer �s

establishment is situated.

In sub clause of ( ii ) of clause ( j )

of Section 2of the works �five hundred

rupees� the words �two thousand and

five hundred rupees� shall be substituted.

This clause will read as - �who, being

employed in a supervisory capacity,

draws wages exceeding two thousand

and five hundred rupees per mensem,

or exercises, either by the nature of

duties attached to the office or by


3

Section 2: Definitions - To widen the

scope of definition to cover the workmen


employer. In sub-clause (ii) of Clause

( j ) of Section 2 - As the amount in

the Act is less; this provision also

excludes a large number of workmen

from the ambit of this provision.

Section 16: Prohibition against

employment of Inter-state migrant

workmen without registration - After

the proviso of this section another

proviso shall be added - �The safeguard

the rights and interest of the migrant

workmen already employed�.

Section 8: Revocation, suspension and

amendment of licenses - After proviso

of sub-section ( 1 ) of Section 10 -

�To safeguard the rights and interest of

the migrant workman already recruited.�

Section 10A: This will have check on

trafficking of persons. As the provision

of labour officers is already in existence,

this may be included as a part of their

duty to maintain registration process.

Giving this responsibility to the �specified

authority� mentioned in the explanation

of section 12 (2) of the Act may also

be considered. Section 10B:

Consequential suggestion in respect to

insertion of section 10A.

THE INTER-STATE MIGRANT WORKMEN (REGULATION OF EMPLOYMENTAND CONDITIONS OF SERVICE) ACT 1979

(85)

Existing Provisions

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mensem, or exercises, either by the

nature of the duties attached to the

office or by reason of the powers vested

in him, functions mainly of a managerial

nature.



workmen without registration - No

principal employer of an establishment

to which this Act applies shall employ

inter-state migrant workmen in the

establishment unless a certificate of

registration in respect of such

establishment issued under this Act is

in force: Provided that nothing in this

section shall apply to nay establishment

in respect of which an application for

registration made within the period fixed,

whether originally or an extension under

sub-section (1) of Section 4 is pending

before a registering office and for the

purposes of this proviso, an application

to which the provisions of sub-section

(3) of Section 4 apply shall be deemed

to be pending before registering office

concerned till the certificate of

registration is issued in accordance with

the provisions of that sub-section.

Section 8: Licensing Contractors - 1)

with effect from such date as the

appropriate Government may, by

notification in the official Gazette,

appoint, no contractor to whom this

Act applies shall - a) recruit any person

in State for the purpose of employing

reason of the power vested in him,

function mainly of a managerial nature.



workmen without registration - After

the Proviso of this section another

proviso shall be added which will read

as - �Provided further that nothing in

this section shall affect the employment,

and the rights and dues accruing

therefrom to any migrant workman

already employed�.

Section 8: Licensing contractors - After

sub-section ( 3 ) of Section 8, a new

sub-section( 4 ) shall be added -�List

of licensed contractor to be maintained

at and publicly displayed in district and

block center. A list of all licensed

contractors with full details as to the

establishments, on behalf of which they

are licensed to recruit, shall be

maintained and publicly displaced by

every district headquarters, in court

house, at primary health centers, block

offices and other such public places�.

Section 10 : Revocation, Suspension

and Amendment of Licenses - After

Proviso of sub-section 1) of Section 10

a new proviso shall be added. This

will read as � Provided further that

nothing in this section shall affect the

employment, and the rights and dues

accruing therefrom to any migrant

workman already recruited�. Insertion

Section 13: Wage rates and other

conditions of service of inter-state

migrant workman - After clasue (b) of

sub-section (1) of Section a new clause

( e ) - To provide certain provisions

for holiday allowance and paid leave

for the migrant workmen. After sub-

section (1) of Section 13 an explanation

to be added - To make it clear that

what completed years of service means.

Section 16: Other facilities - After

clause (g) of section 16 a new clause

(h) - To avoid the possibility of

trafficking.

Section 35: Power of make rules -

Consequential amendment suggested

upon insertion of section 10A and 10B.

(86)

Existing Provisions

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3

him in any establishment situated in

another State, except under and in

accordance with a licence issued in that

behalf - i ) if such establishment is an

establishment referred to in sub-clause

( i ) if such establishment is an


ii) of Clause a) of sub-section 1) of

Section 2, by the licensing office

appointed by the State Government who

has jurisdiction in relation to the area

wherein the recruitment is made; a)

employ as workmen for the execution

of any work in any establishment in

any State, persons from another State

(whether or not in addition to other

workmen) except under and in

accordance with a license issued in that

behalf � i) if such establishment is an


a) of sub-secion1) of Section 2 by the

licensing officer appointed by the Central

Government who has jurisdiction in

relation to the area where in the

establishment is situated; ii) if such

establishment is an establishment ii)

of Clause a) of sub-section 1) of Section

by the licensing office appointed by the

State Government who has jurisdiction

in relation to the area where in

establishment is suited; 1)��.,

2)��

Section 10: Revocation, suspension and

amendment of licenses - 1) if the

licensing officer is satisfied, either on

of a new Section 10A and 10 B - After

Section 10 two new section 10 A and

10 B shall be inserted,

Section 10A: �Each district, in the State

from which the worker is migrating shall

have a registration of migrant workmen

office which will enter the name of the

migrant workman, date on which he/

she is recruited, the name of the

contractor and the license number, the

name and address of the principal

employer and of the establishment in

which the workman is to be employed

and the displacement allowance paid

to the workman�.

Section 10 B: �Each district in the State

to which an inter-state migrant workman

migrates for work shall maintain a register

having registration of migrant workmen

office which will enter the name of the

migrant workman, date on which he/

she is recruited, the name of the

contractor and the license number, the

name and address of the principal

employer and o he establishment in

which the workman is to be employed

and the displacement allowance paid

to the workman. The details of the

family of the migrant workman, their

present location and whether any of

them has also migrated will be recorded.

It shall be the duty of every principle

employer and contractor to periodically

furnish such information to the registering

authority. Provided that the

(87)

Existing Provisions

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3

a reference made to him in this behalf

or otherwise, that � a) a license granted

under Section 8 has been obtained by

misrepresentation or suppression of any

material fact, or b) the holder of a

lines has, reasonable cause, failed to

comply with the conditions subject to

which the licence has been made

thereunder, contravened any of the

provisions of this Act or the rules made

thereunder then without prejudice to

any other penalty to which the holder

of the licence may be liable under this

Act, the licensing office may, after giving

the holder of the licence an opportunity

to be heard by order in writing, revoke

the licence or forfeit the security

furnished by him under the proviso to

sub-section (2) of Section or any part

thereof and communicate the order to

the holder of the Provided that where

the licensing officer consider it necessary

to do so for any special reasons, he

may, pending such revocation or

forfeiture, by order, suspend the

operation of the licence for such period

as may be specified in the order and

serve by registered post, such order

along with a statement of the reasons

on the holder of the licence and such

order shall take effect on the date on

which such service is effect.

Section 13: Wage rates and other


migrant workman - 1) The wage rates,

consequence of the failure to do so on

the part of employer/contractor shall

not affect the workman�.

Section 13: Wage Rates and other


migrant workman - After clause ( b )

of sub-section ( 1 ) of Section 13, a

new clause ( c ) shall be inserted: This

will read as: �( c) � for every completed

year of service, a holiday allowance shall

be paid to the migrant workman and a

fortnight of paid leave shall be given

to visit the family�. After the proviso

of sub-section (1) of Section 13 another

proviso shall be inserted as - �Provided

further that the provisions of clause c)

shall be applicable only if, an to the

extent, that these are provided for

otherwise under section 13 of the Act.�

After Sub-section (1) of Section 13 an

explanation shall be added as -

Explanation - �For the purpose of this

provision �completed year of service�

will have the same meaning as given

in Section 2 (b) of the Payment of

Gratuity Act, 1972.

Section 16: Other Facilities � After

Clause (g) of Section 16 a new clause

(h) shall be inserted - This will read

as - �where woman are recruited they

shall be permitted at the employer�s

expense to be accompanied by any one

family member of their choice to the

State in which the employer �s

establishment is.�

(88)

Existing Provisions

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holiday, hours of work and other

conditions of service of an inter-state

migrant workman shall - a) in a case

where workman performs in any

establishment, the same or similar kind

of work as is being performed by any

other workman in the establishment,

be the same as those applicable to such

other workman; and b) in any other

case, be such as may be prescribed by

the appropriate government. Provided

that an inter-state migrant workman

shall in no case be paid less than the

wages fixed under the Minimum Wages

At, 1948. 2) Notwithstanding anything

contained in any other law for the time

being in force, wages payable to an

inter-state migrant workman under this

section shall be paid in cash.

Section 16: Other facilities - It shall

be the duty of every contractor

employing inter-state migrant, workmen

in connection with the work of an

establishment to which this Act applies

- a) to ensure regular payment of wages

to such workmen; b) to ensure equal

pay for equal work irrespective of sex;

c) to ensure suitable condition of work

such workmen having regard to the fact

that they are required to work in a State

different from their own status to

provide and maintain suitable residential

accommodation to such workmen during

the period of their employment; e) to

provide the prescribed medical facilities

Section 28: Cognizance of Offence -

For section 28 the following section

shall be substituted. - �No Court

shall take cognizance of any offence

under this Act except on a complaint

made by, or with the previous sanction

in writing of, an inspector or authorized

person or an NGO/Organisation working

for the social cause after calling for a

report on the complain from the

concerned inspector or authorized

person and no court inferior to that of

a Metropolitan Magistrate or a Judicial

Magistrate of first class shall try any

offence punishable under this Act.

Section 35: Power to make Rules -

After clause ( e ) of sub-section ( 2 )

of Section 35 a new clause (ee) shall

be inserted. This will read as: � (ee)

The form, manner and the authority

required to maintain, the register under

section 10A and 10B�.

(89)

Existing Provisions

1


2


3

to the workmen, free of charge; f) to

provide such protective clothing to the

workmen as may be prescribed; and g)

in case of fatal accident or serious bodily

injury to any such workman, to report

to the specified authorities of both the

States and also the next-of-kin of the

workman.

Section 28: Cognizance of Offence -

No Court shall take cognizance of any

offence under this Act except on a

complaint made by, or with the previous

sanction in writing of, an inspector or

authorized person and no court interior

to that of a Metropolitan Magistrate

or a Judicial Magistrate of the first class

shall try any offence punishable under

this Act.

Section 35 : Power to make rules - 1)

The appropriate Government may,

subject to the condition of previous

publication, make rules for carrying out

the purposes of this Act. 2) In particular,

an without prejudice to the generality

of the foregoing power, such rules may

provide for all or any of the following

matters; viz a) the form and manner

in which an application for the

registration of an establishment may

be made under Section 4, the fees

payable thereon and the form of a

certificate of registration issued under

that section; b) the form in which an

application for the grant or renewal of

a licence may be made under Section

(90)

Existing Provisions

1


2


3

9 and the particulars if any contain;

c) the manner in which an investigation

is to be made in respect of an

application for the grant of a licence

and the matters to be taken into account

in granting or refusing a licence; d)

the form of a licence which may be

granted or renewed, the fees payable

for the grant or renewal of a licence

and the security, if any, required to be

furnished for the due performance of

the conditions of the licence; e) the

circumstances under which licences may

be varied or amended under section

10; f) the form and the manner in

which appeals may be filed under

Section 11 and the procedure to be

followed by appellate officers in

disposing of the appeals; g) the wage

rates, holidays, hours of work and other

conditions of service which an inter-

state migrant workman is entitled under

Section 13; h) the period within which

wages payable to inter-state migrant

workmen should be paid by the

contractor under sub-section (1) of

certificate of such payment under-

section (2) thereof; i) the time within

which allowances or facilities required

by this Act to be provided and

maintained may be so provided by the

contractor and in case of default on

the part of the contractor, by the

principal employer under Section 18;

j) the powers that may be exercised by

inspectors under section 18 ; k) the

(91)

Existing Provisions

1


2


3

form of registers and records to be

maintained and the particulars and

information to be contained in notices

to be exhibited by the principle

employers and contractors under Section

23 l) the manner of submission of

return, and the forms in which, and

the authorities to which, such return

may be submitted; m) legal aid to inter-

state migrant workmen; n)any other

matter which is required to be, or mayu

be, prescribed under this Act. 3) Every

rule made by the Central Government

under this Act shall be laid so soon as

may be after it is made, before each

House of Parliament while it is in session

for a total period of thirty days which

may be comprised in one session or in

two or more successive session and if

before the expiry of the session

immediately following session or the

successive sessions aforesaid, both

House agree in making any modification

in the rule or both Houses agree that

the rule should not be made, the rule

be; so, however, that any such

modification or annulment shall be

without prejudice to the validity of

anything previously done under that rule.

(92)

Existing Provisions

1

Section 2 : Application of Personal Law

to Muslims - Not withstanding any

customs or usage to the contrary, in

all questions save questions relating to

agricultural land regarding interstate

succession, special property of females,

including personal property inherited or

obtained under contract or gift or any

other provision of Personal Law,

marriage, dissolution of marriage,

including Talaq, Ila, Zihar, Lian, Khula

and Mubaraat, maintenance, dower,

guardianship, gifts, trust and trust

properties and wakfs (other than

charities and charitable institutions and

charitable and religious endowments)

the rule of decision in cases where the

parties are Muslims shall be the Muslim

Personal Law (SHARIAT).

Section 3: Power to make a declaration-

1) Any person who satisfied the

prescribed authority - a) that he is a

Muslim, and b) that he is competent

to contract within the meaning of section

11 of the Indian Contract Act, 1872,

and c) that he is resident of (the

territories to which this Act extends)

may be declaration in the prescribed

from and filed before the prescribed

authority declare that he desires to

obtain the benefit of (the provisions of

this section), and thereafter the

provisions of section 2 shall apply to


2

Section 2: Application of personal Law

to Muslims - the following words shall

be deleted - �(save questions relating

to agricultural land)�. And (other than

charities and charitable institutions and

charitable and religious endowments).�

The Section will be read as �

Notwithstanding any customs or usage

of the contrary, in all questions regarding

intestate succession, special property

of females, including personal property

inherited or obtained under contact or

gift or any other provision of Personal

Law marriage, dissolution of marriage,

including talaq, ila, zihar, lian, khula

and mubaraat, maintenance, dower,

guardianship, gifts, trusts and trust

properties, and wakfs the rule of

decision in cases where the parties are

Muslim shall be the Muslim Personal

Law (Shariat).

Section 3: Power to make a declaration

- The words �wills and legacies� shall

be deleted from clause ( c ) of sub-

section ( 1 ) of section 3. This section

will be read as - �i) Any person who

satisfies the prescribed authority � a)

that he is a Muslim, and b)that he is

competent to contract within the

meaning of section 11 of the Indian

Contract Act, 1872, and that he is a

resident of (the territories to which this

Act extends), may be declaration in


3

Section 3 � Power to make a declaration

- �To help Muslim daughters, sisters

and wives in getting their shares of

property. The existing provision deprive

the women from getting their shares

in inheritance.

THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937

(93)

Existing Provisions

1


2


3

be declarant and all his minor children

and their descendants as if in addition

to the matters enumerated therein

adoption, (wills and legacies) were also

specified. 2) Where the prescribed

authority refuses to accept a declaration

under sub-section (1), the person

desiring to make the same may appeal

to such officer as the State Government

may, by general or special order, appoint

in this behalf, and such officer may if

he is satisfied that the appellant is

entitled to make the declaration, order

the prescribed authority to accept the

same.

the prescribed form and filed before

the prescribed authority declare that

he desires to obtain the benefit of (the

provisions of this section), and

thereafter the provisions of section 2

shall apply to the declarant and all his

minor children and their descendants

as if in addition to the matters

enumerated therein adoption, was also

specified.

(94)

Existing Provisions

1

Section 4: Definitions - In this Act �

a) �minor� means a person who has

not completed the age of eighteen years;

b) �guardian� means a person having

the case of the person of minor or of

his property or of both his person and

property, and includes - i) a natural

guardian, ii) a guardian appointed by

Will of the minor�s father or mother,

iii) a guardian appointed or declared

by a court, and iv) a person empowered

to act as such by or under any

enactment relating to any Court of

Wards; c) �natural guardian� means

any of the guardians mentioned in

section 6.

Section 6: Natural guardians of a

Hindu minor - The natural guardian

of a Hindu minor, in respect of the

minor�s property (excluding his or her

undivided interest in joint family

property) are � a) in the case of a boy

or any unmarried girl � the father, and

after him, the mother; provided that

the custody of a minor who has not

complete the age of five years shall

ordinarily be with the mother; b) in

case of an illegitimate boy or an

illegitimate unmarried girl � the mother,

and after her, the father; c) in the

case of a married girl � the husband -

provided that no person shall be entitled

to act as the natural guardian of a


2

Section 4: Definition - For sub-clause

( ii ) of Clause (b) of Section 4 the

following shall be substituted - � a

guardian appointed by the will of minor�s

last surviving parent�. After Clause (c)

of Section 4 a new Clause (d) shall be

inserted - �Parent includes both mother

and father or survivor.

Section 6: For Section 6 the following

shall be substituted � The natural

guardian of a Hindu minor, in respect

of the minor�s person as well as in

respect of the minor �s property

(excluding his or her undivided interest

in joint family property)¸are both the

parents; ie. Mother and father.

Provided that no person shall be entitled

to act as the nautral guardian of aminor

under the provisions of this section a)if

he ceased to be Hindu or if he has

completely and finally renounced the

world by becoming a hermit or ascetic.

Explanation: in the section the

expression parents do not include a

step father and a step mother.

Section 7: Natural guardianship of

adopted son -For Section 7 following

shall be substituted. - Natural

Guardianship of adopted child. The

natural guardianship of an adopted child

passes, on adoption, to the adoptive

parent/parents.


3

Section 4 � Definition - Consequential

amendments in respect of the

amendment suggested in sub-clause ii)

of Clause b) of Section.

Section 6: Natural guardians of a Hindu

Minor - There is no clear cut categorical

statement of law in the statute that

the mother and father are both natural

guardians of the child at all times and

for all purposes.


adopted son - To remove the

discriminatory provision against

daughter.

Section 8: Powers of natural guardian

- In sub-section 6 of Section 8 - For

the sake of convenience of the minor

and his/her guardian.

Section 9: Sub-section (1) of Section

8 - �To give equal rights to both the

parents to act as natural guardian. Sub-

section (2) of Section 9 - �

Consequential amendment in respect

to sub-section (1). Section 9 (3) �

Consequential amendment. Section 9

(4) - Consequential amendment Section

9 (6) - Consequential amendment.

THE HINDU MINORITY AND GUARDIANSHIP ACT, 1956

(95)

Existing Provisions

1


2


3

minor under the provisions of this

section � a) if he ceased to be Hindu

or if he has completely and finally

renounced the world by becoming a

hermit or ascetic. Explanation - in

the section the express father and

mother do not include a step father

and a step mother.


adopted son - The natural guardianship

of an adopted son who is a minor

passes, on adoption, to the adoptive

father and after him to the adoptive

mother.


- 1) ��, 2)��, a) a��., b)��

3)�� 4)��.., 5)�� a)��.,

b)��, c)�� 6) In this section

�Court� means the city civil court or a

district court or a Court empowered

under section 4A of the Guardian and

Wards Act, 1890, within the local limits

of whose jurisdiction the immovable

property in respect of which the

application is made is situate, and where

the immovable property is situated

within the jurisdiction of more than one

such court, means the Court within the

local limits of whose jurisdiction any

protection of the property is situated.

Section 9: Testamentary guardians and

their powers - 1) A Hindu father entitle

to act as the natural guardian of his

minor legitimate children, may, by will


- In sub-section 6 of Section 8 at the

end after the words the property is

situated, the words or where the minor

normally resides shall be added �This

will read as � In this section �Court �

means the city civil court or a district

court or a Court empowered under

section 4A of the Guardian and Wards

Act, 1890, within the local limits of

whose jurisdiction the immovable

property in respect of which the

application is made in situated, and

where the immovable property is

situated within the jurisdiction of more

than one such court, means the Court

within the local limits of whose

jurisdiction any portion of the property

is situated or where the minor normally

reside.

Section 9: Testamentary guardians

and their powers - For sub-section 1)

of Section 8 the following shall be

substituted - � A Hindu parent entitled

to act as natural guardian of her/his

minor children, may, by will, appoint a

guardian of for any of them in respect

of the minor�s person or in respect of

the minor�s property (other than the

undivided interest referred in section

12) or in respect both�. For sub section

2) of Section 9 the following shall be

substituted � An appointment made

under sub-section (1) shall have no

effect if there is a surviving parent dies

(96)

Existing Provisions

1


2


3

appoint a guardian for any of them in

respect of the minor�s person or in

respect of the minor�s property (other

than the undivided interest referred in

section 12) or in respect of both. 2)

An appointment made under sub-section

1) shall have no effect if the father

predeceases the mother, but shall revive

if the mother dies without appointing

by will, any person as guardian. 3) A

Hindu widow entitled to act as the

natural guardian or her minor legitimate

children, and a Hindu mother entitled

to act as the natural guardian or her

minor legitimate children by reason of

the fact that the father has become

disentitled to act as such, may, by will,

appoint a guardian for any of them in

respect of the minor�s person or in

respect of the minor�s property (other

than the undivided interest referred to

in section 12) or in respect of both.

4)A Hindu mother entitled to act as

the natural guardian of her minor

illegitimate children may, by will, appoint

a guardian for any of them in respect

of the minor�s person or in respect of

the minor�s property or in respect of

both. 5) The guardian so appointed

by will has the right to act as the minor�s

guardian after the death of the minor�s

father or mother, as the case may be

and to exercise all the rights of a natural

guardian under this Act to such extent

and to such restrictions, if any, as are

specified in this Act and the will. 6)

without appointing by will, any person

as guardian�. Section 9 (3) should be

deleted. Section 9 (4) should be

deleted. Section 9 (6) should be

deleted.

Section13 - Welfare of minor to be

paramount consideration - After sub-

section (2) of Section 13, a new sub-

section (3) shall be added - �Where

the court seen the question of fitness

of guardian to act as such regard may

be had to the wishes of the person.�

(97)

Existing Provisions

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2


3

The right of the guardian so appointed

by will shall where the minor is a girl,

cease on her marriage.

Section 13: Welfare of minor to be

paramount consideration - 1) In the

appointment or declaration of any

person is guardian of a Hindu minor

by a Court, the welfare of the minor

shall be the paramount consideration.

2) No person shall be entitled to the

guardianship by virtue of the provision

of this act or any law relating to

guardianship in marriage among Hindus,

if the court is of opinion that his or

her guardianship will not be for the

welfare of the minor.

(98)

Existing Provisions

1

All amendments agreed. However, NCW

suggested the following additional

section for insertion, to make the Act

broadened to cover all those

establishment which are at present

covered by the Maternity Benefit

Atc.,1961.


2

Section 101: Insertion of New

Section - �Notwithstanding anything

contained to the contrary, in the

Employees� State Insurance Act, 1948

or the rules made there under, the

following provisions shall come into

effect: i) The benefits under this Act

shall be available to employees in all

such establishments, which are covered

by the Maternity Benefits Act, 1961.

ii) The maternity benefits under the Act

shall include - a) Nursing breaks; and

b) Exemption from heavy work�.


3

THE EMPLOYEES� STATE INSURANCE ACT, 1948

(99)

Existing Provisions

1

Section 2: Definition - In this Act,

unless the context otherwise requires;

a) �advertisement� includes any notice,

circular, label, wrapper or other

document and also includes any visible

representation made by means of any

light, sound, smoke or gas. b) �indecent

representation of women� means the

depiction in any manner of the figure

of a woman; her form or body or any

part thereof in such way as to have

the effect of being indecent, or

derogatory to, or denigrating women,

or is likely to deprave, corrupt or injure

the public morality or morals.

Section 3: Prohibition of advertisements

containing indecent representation of

women � No person shall publish, or

cause to be published, or arrange or

take part in the publication or exhibition

of, any advertisement which contains

indecent representation of women in

any form.

Section 4: Prohibition of publication or

sending by post of books, pamphlets,

etc. containing indecent representation

of women - No person shall produce

or cause to be produced, sell, let to

hire, distribute, circulate or send by post

any book, pamphlet, paper, slide, film,

writing, drawing, painting, photograph,

representation or figure which contains


2

Section 2: Definition - �Clause a) under

Section 2 on Definitions will read as:

- �advertisement� includes any notice,

circular, label, poster, wrapper or other

document and also includes any visible

representation made by means of any

laser light, sound, smoke, gas, fibre,

optic electronic or other media� Clause

c) of Section of the Act should read as

- �Derogatory or Indecent Representation

of Women� means the depiction in any

manner of the figure of a women, her

form or body or any part thereof in

such a way as to have the effect of

denigrating or of being Indecent or

Derogatory to women, or is likely to

deprave, corrupt or injure the public

morality or morals.�

Explanation: As the Commission has

withdrawn the inclusion of the term

�derogatory�, no amendments would be

necessary in Section 3 or in the reading

of Section 4 of the Act.

Insertion of a New Clause 4A and 4B:

The Commission agrees to the insertion

of new clauses 4A and 4B, as follows:

Clause - 4A: Publicity to be given to

the provisions of the Act - �1) As

soon as may be after the

commencement of the Indecent

Representation of Women (Prohibition)

Amendment Act, 1988, the State


3

THE INDECENT REPRESENTATION OF WOMEN (PROHIBITION) ACT, 1986

(100)

Existing Provisions

1


2


3

indecent representation of women in

any;

Section 6: Penalty - Any person who

contravenes the provisions of section

3 or section 4 shall be punishable on

first conviction with imprisonment of

either description for a term which may

extend to two years, and with fine which

may extend to two thousand rupees,

and in the event of a second or

subsequent conviction with

imprisonment for terms of not less

than six months but which may extend

to five years and also with a fine not

less than ten thousand rupees but which

may extend to one lakh rupees.

Government shall take steps to make

known the provisions of this Act to the

public in such manner as it may think

fit. 2) The taking of steps by the State

Governments to publicize the provisions

of the Act shall include the provision

of this Act being translated into the

local language and copies of the same

along with the effective steps to be

taken by the police as soon as a

complain is received under Section 4B

about violation of the provisions of the

Act.

Clause 4B � Complaints of Member of

public, etc. � It shall be open for any

member of the public or any

organization interested in the welfare

and development of women to file a

complaint in such time and in such

manner as may be prescribed to the

police authorities about any derogatory

representation of women which is an

offence under the Act and it shall be

the duty of the police to expeditiously

investigate the complaint and take

necessary action to prosecute the person

who is responsible for the contravention.

Section 6: - Penalty - In Section 6 on

Penalty, the words �and with fine which

may extend to two thousand rupees�

shall be substituted with the words �and

with fine which may extend to ten

thousand rupees� and the words �in the

event of a second or subsequent

conviction with imprisonment for a term

(101)

Existing Provisions

1


2


3

of not less than six months but which

may extend to five years and also with

a fine not less than ten thousand rupees

but which may extend to one lakh

rupees� shall be substituted with the

words �in the event of second or

subsequent conviction with imprisonment

for a term of not less than six months

but which may extend to five years and

also with a fine not less than fifty

thousand rupees but which may extend

to five lakh rupees�.

(102)

Existing Provisions

1


2

Section 114B: i) Insertion of new Section

114B presumption as to the Commission

of sexual intercourse. It may be added

that in a prosecution for the offence

of rape, where the question whether

sexual intercourse had been committed

on the woman or child alleged to have

been raped describes the act of sexual

intercourse had been committed, the

court trying the offence shall presume

that sexual intercourse had, in fact been

committed. ii) Further amendment

also proposed to Section 155 of the

Indian Evidence Act with regard to

prosecutrix�s past sexual experience if

any, is of no consequence.


3

INDIAN EVIDENCE ACT, 1872

(103)

Existing Provisions

1


2

1. There shall be one or more Courts

designated as Family Courts in every

district who shall have exclusive

competence to entertain and try suits

in respect of all matters arising under

this Act and no other court shall

entertain and try any such suit.

1) The exclusive competence of the

Family Courts shall also extend to

criminal cases arising out of:

2) Offences punishable under this

Act;

3) Contravention of clause b) of sub-

section 1) of section 3 of this Act, being

offence punishable under section 494

of the Indian Penal Code;

4) Offences punishable under

sections 493. 495, 496, 497, 498-A of

the Indian Penal Code; and

5) Offences punishable under section

5 and 6 of the Child Marriage Restraint

Act and offences relating to domestic

violence.

6) When exercising jurisdiction under,

sub-section 1), the Family Court shall

have all the powers of an ordinary civil

court of unlimited pecuniary jurisdiction.

The procedure shall be as laid down in

the code of Civil Procedure except that

on the date of the first appearance of

the parties a time-schedule shall be


3

FAMILY COURTS ACT, 1984

(104)

Existing Provisions

1


2


3

worked out which shall not be departed

from same for grave an exceptional

reasons however, that the entire

proceedings; including the

pronouncement of judgement shall be

concluded within six months from the

date of institution.

7) When exercising jurisdiction under

sub-section 2), the Family Court shall

have all the powers of a magistrate of

the First Class and may pass any

sentence which may be passed by the

Court of a Chief Judicial Magistrate.

The procedure shall be as laid down in

the code of Criminal Procedure except

that on the date of the first appearance

of the accused a time schedule shall

be worked out which shall not be

departed from save or grave and

exceptional reasons so however that the

entire proceedings including the

pronouncements of judgement shall be

concluded within six months from the

date of institution.

The following additional

recommendations have been made:

i) Grant of maintenance should

include provisions for residence for

women

ii) There must be speedy settlement

of disputes and there should be a fixed

time limit for disposal of the cases by

the Family Courts

(105)

Existing Provisions

1


2


3

iii) Judges and other court stall must

be gender sensitized through appropriate

training

iv) Family Courts can also take the

help of NGOs in the settlement of

disputes

v) Counsellers should be appointed

on a permanent basis and should be

given training

vi) Family Courts should follow simple

procedures which should not create

hurdles to justice

vii) Drafting of the application or

complaint may be done in the vernacular

language

viii) Appearance of the Lawyers may

be permitted in the Family Courts subject

to a proviso that in case the Court feels

that the Lawyer is getting the matter

adjourned and delaying the process, the

court may have power to terminate his

Vakalatnama asking the party to engage

another Lawyer to pursue the matter.

With this much control un-necessary

adjournment may be avoided.

ix) There should be an informal

atmosphere in the Family Courts and

the Family Courts should not work like

any other Civil Courts

x) Qualified social workers and social

activists, having para legal training may

also be considered for appointment as

judges of the Family Courts

(106)

Existing Provisions

1


2


3

xi) To bring uniformity in the Rules

of Family Courts, all over the country,

a Drafting Committee may be set up

to draft the rules. Drafting Committee

may also devise the sample draft of

the application normally filed in the

Family Court which include application

under section 125.

xii) Every district should have Family

Courts. Attempts should be made to

bring around all States to ensure the

establishment of Family Court in every

district.

xiii) Good practices such as facilities

like children complex etc. should be

introduced in all Family Courts.

Necessary infrastructure should be

provided at the time of institution of

the Family Courts.

xiv) A uniform model rules should be

prepared for the appointment of judges

in Family Courts. Judges can also act

as a counsel at the second stage of

counsellng.

xv) A women should be allowed to

file a case in the Family Court in the

district or state where she resides not

necessarily at the place where the

marriage took place or where the

husband resides.

There should be more judges and courts

if the work so demands to handle the

litigations effectively.

(107)

Existing Provisions

1

Section 3: Punishment for male adult

below twenty one years of age marrying

a child - being a male of above eighteen

years and below twenty one years,

contracts a child marriage shall be

punishable with simple imprisonment

which may extend to fifteen days or

with fine which may extend to one

thousand rupees or with both.


above twenty years of age marrying a

child - punishable with simple

imprisonment which may extend to three

months and shall also be liable to fine

Section 5: Punishment for solemnizing

a child marriage � Whoever perform,

conducts or directs any child marriage

shall be punishable with simple

imprisonment which may extend to three

months and also liable to fine, unless

he proves that he had reason to believe

that the marriage was not a child

marriage.

Section 6: Punishment for parent or

guardian concerned in a child marriage:

i) where a minor contracts a child

marriage, any person having charge of

the minor, whether as parent or

guardian, or in any other capacity, lawful

or unlawful, who does any act to

promote the marriage or permits it to

be solemnized, or negligently fails to


2



a child - being a male of above eighteen

years and below twenty one years,

contracts a child marriage shall be

punishable with simple imprisonment

which may extend to three months or

with fine which may extend to one

thousand rupees or with both.



child - punishable with simple

imprisonment of a minimum period of

15 days, which may extend to a period

of one year and shall also be liable to

fine


a child marriage � Whoever performs,

conducts or directs any child marriage

shall be punishable with simple

imprisonment of a minimum period of

15 days, which may extend to one year

and also liable to fine, unless he proves

that he had reason to believe that the

marriage was not a child marriage.


guardian concerned in a child marriage

and those who knowingly attended/

participated in a child marriage: i)

Where a minor contracts a child

marriage, any person having charge of

the minor, whether as parent or


3



a child � To make the punishment

stringent so that Act may become an

effective deterrent.



child - To make the punishment stringent

so that Act may become an effective

deterrent.


a child marriage - To make the

punishment stringent so that Act may

become an effective deterrent.


guardian concerned in a child marriage

and those who knowingly attended/

participated in a child marriage - To

negate the approval of child marriage

by the society. Participation by society,

the parents or guardian may think that

the society has given its approval.

Section 6A: Marriage of a Minor to be

void in certain circumstances � To

provide that when a minor is taken out

of the keeping of the lawful guardian

or induced to go from any place or

sold and subsequently made to go

through a form of marriage such

marriage shall be void.

Section 13: To make the implementation

THE CHILD MARRIAGE RESTRAINT ACT, 1929

(108)

Existing Provisions

1


2


3

prevent it from being solemnized, shall

be punishable with simple imprisonment

which may extend to three months and

shall also be liable to fine:

Provided that no woman, shall be

punishable with imprisonment.

2) For the purpose of this Section,

it shall be presumed, unless child

marriage, the person having charge of

such minor has negligently failed to

prevent the marriage from being

solemnized.

Section 7: Offences to be cognizable

for certain purposes - The Code of

Criminal Procedure, 1973 ( 2 of 1974)

shall apply to offences under this Act

as if they were cognizable offences -

a) for the purpose of investigation of

such offences and b) for the purpose

of matters other than i) matters referred

to in Section 42 of that Code, and ii)

the arrest of a person without a warrant

or without an order of a Magistrate.

Amendments of the Indian Penal Code,

1860:

Section 361: Kidnapping from lawful

guardianship - Whoever takes or entices

any minor under sixteen years of age

if a made, or under eighteen years of

age if a a female, or any person of

unsound mind, out of the keeping of

the lawful guardian of such minor or

person of unsound mind, without the

consent of such guardian, is said to

guardian, or in any other capacity, lawful

or unlawful, who does any act to

promote the marriage or permits it to

be solemnized including attendance/

participation in child marriage, or

negligently fails to prevent it from being

solemnized, shall be punishable with

simple imprisonment of a minimum of

15 days which may extend to one year

and shall also be liable to fine:

Provided that no woman, shall be

punishable with imprisonment.

2) For the purpose of this Section,

it shall be presumed, unless and until

the contrary is proved, that where a

minor has contracted a child marriage,

the person having charge of such minor

has negligently failed to prevent the

marriage from being solemnized.

After Section 6, the following Section

shall be inserted:

6A: Marriage of a Minor to be void in

certain circumstances:

Where a minor: a) Is taken or enticed

out of the keeping of the lawful

guardian; or b) by force compelled, or

by any deceitful means inducted, to go

from any place; or c) sold for the

purpose of marriage; and subsequently

made to go through a form of marriage,

such marriage shall be null and void

so declared by a decree of nullify

provided this is done within one year

and provisions of the Act more stringent

and deterrent. Use of the world �shall�

would make it mandatory for the State

Government to appoint such officer.

Amendment of Section 361: To remove

the differentiation of age for male and

female child; to provide for definition

of �Consent� (which shall not include

consent obtained by force, deceitful

means or payment of money or other

consideration or which is otherwise

against the interest of the minor or

person of unsound mind) and omit the

Exception which, in the opinion of the

Commission does not serve any purpose.

Section 362 A: To make the offence of

abduction with an illegal intent

punishable.

Section 373: Insertion of a new section

373 A in the Code of the effect that

selling or otherwise disposing of a minor

for consideration shall be punishable

offence.

(109)

Existing Provisions

1


2


3

kidnap such minor or person from lawful

guardianship.

Explanation: the words �lawful guardian�

in this section include any person

lawfully entrusted with the care or

custody of such minor or other person.

Exception: This section does not extend

to the act of any person who in good

faith believes himself to be the father

of an illegitimate child, or who in good

faith believes himself to be entitled to

the lawful custody of such child, unless

such act is committed for an immoral

or unlawful purpose.

Section 362: Abduction � Whoever by

force compels, or by any deceitful means

induces, any person to go from any

place, is said to abduct that person

Section 373: Buying minor for purposes

of prostitution, etc - Whoever buys,

hires or otherwise obtains possession

of any person under the age of eighteen

years with intent that such person shall

at any age be employed or used for

the purpose of prostitution or illicit

intercourse with any person or for any

unlawful and immoral purpose, or

knowing it to be likely that such person

will at any age be employed or used

for any such purpose, shall be punished

with imprisonment of either description

for a term which may extend to ten

years, and shall also be liable to fine.

of the minor child becoming 165 years

of age.

Section 7: Offences to be cognizable-

An offence punishable under this Act

shall be deemed to be a cognizable

offence within the meaning of the Code.

Section 13: The following sections shall

be added - i) The State Government

shall, by notification in the Official

Gazette, appoint for the whole State

or for such part thereof as may be

specified in that notification, an officer

to be known as Child Marriage

Prevention Officer. ii) It shall be the

duty of the Child Marriage Prevention

Officer :

1. To prevent marriages being

performed in contravention of the

provisions of this Act by taking such

action under this Act as he deems fit;

2. To collect evidence for the

effective prosecution of persons

contravening provisions of this Act� and

3. To discharge such other functions

as may be assigned to him/her by the

State Government.

4. The State Government may, by

notification in the official Gazette, invest

the Child Marriage Prevention Officer

with such powers of a police officer as

may be specified in the notification and

the Child Marriage Prevention Officer

shall exercise his/her powers subject to

(110)

Existing Provisions

1


2


3

Explanation - I: Any prostitute or any

person keeping or managing a brothel,

who buys, hires or otherwise obtains

possession of a female under the age

of eighteen years, shall until the contrary

is proved, be presume to have obtained

possession of such female with the

intent that she shall be used for the

purpose of prostitution.

Explanation � II: �Illicit intercourse�

has the same meaning as in section

372.

such limitation and conditions as may

be specified in the notification.

Section 13 -A: Officer appointed under

the Act to be public servant - The

Child Marriage Prevention Officer

appointed under Section 13 shall be

deemed to be public servant within the

meaning of Section 21 of the Indian

Penal Code (XLV of 1860).

Section 13-B: Protection of action taken

in good faith - No suit, prosecution

or other legal proceedings shall be

against the Child Marriage Prevention

Officer appointed under this Act in

respect of anything in good faith done

or intended to be done in pursuance

of this Act or of any rules or orders

made hereunder.

Section 14: Power to make rules - The

State Government may, by notification

in the official Gazette, make rules, for

the purposes of carrying out the

provisions of this Act and a Panchayat

level Officer may be appointed as Child

Marriage Prevention Officer.

Amendment of Section 361: a) for the

opening portion, the following shall be

substituted viz � � Whoever takes or

entices any minor under eighteen years

of age or any person of unsound mind,

out of the keeping of the lawful guardian

of such minor or person of unsound

mind, without the consent of such

guardian, is said to kidnap such minor

(111)

Existing Provisions

1


2


3

or person�. b) the Explanation shall

be renumbered as Explanation I and

after the Explanation as to renumbered,

the following Explanation shall be

inserted viz The word �consent� in the

section shall not include consent

obtained by force, deceitful means or

payment of money or other

consideration or which is otherwise

against the interest of the minor or

person of unsound mind. c) the

Exception shall be omitted.

Insertion of a new Section 373 A after

section 373: The following section shall

be inserted viz 373-A - Selling or

buying of minors other case. Whoever,

in a case not under section 372 or 373

- a) sells or otherwise disposes off for

consideration any person under the

eighteen years; or b) buys or otherwise

obtains for consideration the possession

of any such person; shall be punishable

with imprisonment of either description

for a term which may extend to seven

years and shall also be liable to fine.

(112)

Existing Provisions

1

Section 2: Definition - a) �Degrees of

prohibited relationship� shall have the

same meaning as in the Special

Marriage Act, 1954�, b) �district� in

relation to a marriage officer, means

the area within which the duties of

his officer are to be discharged, c)

�foreign country� means a country or

place outside India and includes a ship

which is for the time being in the

territorial waters of such a country or

place, d) �marriage officer� means a

person appointed under Section 3 to

be a marriage officer, e) �official house�

in relation to a marriage officer means

- i) the official house or residence of

the officer, ii) the office in which the

business of the officer is transacted,

and iii) a prescribed place and f)

�prescribed� means prescribed by rules

made under this Act.


solemnization of foreign marriages -

a marriage between parties one of whom

at least is a citizen of India may be

solemnized under this Act by or before

a Marriage Officer in a foreign country,

if, at the time of the marriage, the

following conditions are fulfilled, viz -

a) neither party has a spouse living, b)

neither party is an idiot or a lunatic,

c) the bridegroom has completed the

age of twenty-one years and the bride


2

Short Title: Throughout the Act, for the

word �solemnized� wherever it occurs,

the word �performed� shall be

substituted, and such amendments as

the rules of grammer may require shall

also be made.

Section 2 � Definition: Clause a) of

Section 2 shall be omitted.

Section 4: Substitute the following �

Conditions relating to performance of

foreign marriage - A marriage between

parties one of whom at least is a citizen

of India may be performed under this

Act, by or before a Marriage Officer in

a foreign country, if the following

conditions are fulfilled at the time of

marriage, namely � a) such person, in

the case of a male, has completed the

age of twenty-one years, and in the

case of a female, has completed the

age of eighteen years; b)neither party

has a spouse living; c) the parties to

the marriage do no fall within the

degrees of prohibited relationship; d)

both the parties have consented to do

the marriage.

Explanation - i) For the purpose of this

section �consent� shall not be valid if

such consent is - a) obtained by force

or fraud; or b) if either of the parties

is incapable of giving consent by reason

of unsoundness of mind. ii) two persons


3

THE FOREIGN MARRIAGE ACT, 1969

(113)

the age of eighteen years at the time

of the marriage ; and d) the parties

are not within the degrees of prohibited,

relationship.

Provided that where the personal law

or a custom governing at least one of

the parties permits of a marriage

between them, such marriage may be

solemnized, notwithstanding that they

are within the degrees of prohibited

relationship.

Section 18: Matrimonial reliefs to be

under Special Marriage Act, 1954 -

1) Subject to the other provisions

contained in this section, the provision

of Chapter IV, V, VI and VII of the Special

Marriage Act, 1954, shall apply in

relation to marriages solemnized in a

foreign country between parties of whom

one at least is a citizen of India as

they apply in relation to marriages

solemnized under that Act. 2) Every

petition for relief under Chapter V or

Chapter VI of the Special Marriage Act,

1954, as made applicable to the

marriages referred to in sub-section,

1) shall be presented to the District

Court within the local limits of whose

ordinary civil jurisdiction.

Explanation: In this Section �District

Court� has the same meaning as in the

Special Marriage Act, 1954.

Section 18 (3): Nothing contained in

this section shall authorize any Court -

are within the �degrees of prohibited

relationship� - a) if one is a lineal

ascendant or descendant of the other;

or b) if one was the wife or husband of

a lineal ascendant or descendant of

the other; or c) if the two are related

as brother and sister.

Section 18: a) For the Short title and

sub-section 1) the following shall be

substituted viz; �Matrimonial reliefs to

be under the Marriage Act, 1994�.

Section 1): Subject to the other

provisions contained in this section, the

provisions of sections 8,9,10,11 and

12 of the Marriage Act, 1994 shall apply

in relation in marriages performed in

a foreign country between parties of

whom one at least is a citizen of India,

as they apply in relation to marriages

performed under that Act.

Section 18: b) For the words and

�Chapter V or Chapter VI of the Special

Marriage Act, 1954�, the words and

figures �sections 8, 9, 10 and 11 of the

Marriage Act 1994� shall be substituted;

ii) For the words �the District Court�

the words �the Family Court� shall be

substituted; iii) For the �Explanation�

the following Explanation shall be

substituted viz �Explanation� - In this

section �Family Court� has the same

meaning as in the Marriage Act, 1994.

c) In clause d) of sub-section 3), for

the words and figures �Chapter V or

Existing Provisions

1


2


3

(114)

Existing Provisions

1


2


3

a) to make any decree of dissolution

of marriage, except where - i) the

parties to the marriage are domiciled

in India at the time of the presentation

of the petition, or ii) the petition, being

the wife, was domiciled in India

immediately before the marriage and

has been residing in Indian for a period

of not less than three years immediately

proceeding the presentation of the

petition, b) to make any decree

annulling a voidable marriage, except

where - i) the parties to the marriage

are domiciled in India at the time of

the presentation of the petition, ii)

the marriage was solemnized under this

Act and the petitioner being the wife,

has been ordinarily resident in India

for a period of three years immediately

preceding the presentation of the

petition; c) to make any decree of nullify

of marriage in respect of a void marriage

except where - i) either the parties

to the marriage is domiciled in India

at the time of the presentation of the

petition, or ii) the marriage was

solemnized under this Act and the

petitioner is residing in India at the

time of presentation of the petition d)

to grant any other relief under Chapter

V or Chapter VI of the Special Marriage

Act, 1954, except where the petitioner

is residing in India at the time of the

presentation of the petition.

Chapter VI of the Special Marriage Act,

1954�, the words and figures �section

8,9,10 and 11 of the Marriage Act 1994�

shall be substituted. d) In sub-section

4) for the words and figures, �the Special

Marriage Act, 1954� the words and

figures �the Marriage Act, 1994� shall

be substituted.

(115)

Existing Provisions

1


2


3

Section 18 (4): Nothing contained in

sub-section 1) shall authorize any court

to grant any relief under this Act in

relation to any marriage in a foreign

country not solemnized under it, if the

grant of relief in respect of such

marriage (whether on any of the grounds

specified in the special Marriage Act,

1954 or otherwise) is provided for under

any other law for the time being in

force.

Section 29: Amendments incorporated

in the Special Marriage Act, 43 of 1954.

(116)

Existing Provisions

1

Section 1 - Short title, extent,

commencement and application - Sub-

section 4) It applies - a) to every

establishment in which twenty or more

workmen are employed or were

employed on any day of the preceding

twelve months as contract labour, b)

to every contractor who employed or

who employed on any day of the

preceding twelve months twenty or more

workmen - Provided - that the

appropriate Government may, after

giving not less than two months notice

of its intention so to do, by notification

in the Official Gazette, apply the

provisions of this Act to any

establishment or contractor employing

such number of workmen less than

twenty as may be specified in the

notification. Sub section 5) - a) it

shall not apply to establishments in

which work only of an intermittent or

casual nature is performed. b) if a

question arises whether work performed

in an establishment is of an intermittent

or casual nature, the appropriate

Government shall decide that question

after consultation with the Central

Board, or, as the case may be, State

Board, and its decision shall be final.

Explanation - For the purpose of this

sub-section, work performed in an

establishment shall not be deemed to


2

Section 1: Short title, extent,

commencement and application - Sub-

section 4) of Section 1) shall be deleted.

Also sub-section 5) of Section 1) shall

be deleted. Explanation shall be

deleted.

Section 2: Definition - An explanation

shall be added in clause c) of sub-section

1) of Section 2 ) as below: Explanation

- The word contractor includes both a

licensed and a non-licensed contractor.

This section will read as: c) �contractor�,

in relation to an establishment, means

a person who undertakes to produce a

given result for the establishment, other

than a mere supply of goods or articles

of manufacture to such establishment,

through contract labour or who supplies

contract labour for any work of the

establishment and includes a sub-

contractor. Explanation � The word

contractor includes both a licensed and

a non-licensed contractor.

Section 2: i) This ceiling of Rs.500/-

shall be removed. A suitable amount

be replaced, determined by the

appropriate government consistent with

the living index and the sale of inflation.

Section 3: Central Advisory Board -

After the proviso of this section another


as - �Provided further that at least


3

Sub - section 4) of Section � 1) To

widen the scope of application of this

Act. Application of this Act should not

be limited to the establishment in which

only twenty or more workmen are

employed. It should also not exclude

the establishments in which work of

intermittent or casual nature is

performed. These provision deprive the

workmen from the benefit of this Act

if there is less than twenty workmen in

any establishment and work of

intermittent or casual nature is

performed.

Consequential amendment in respect

to Sub-section 5) of section 1).

Section 2: Definition � For the sake of

clarity that the word contractor includes

both licensed and non-licensed

contractor. B) - The ceiling of Rs.500/

- is too low considering the present

rate of inflation. It should be reasonably

enhance.

Section 3: Another proviso - To give

equal participation to women in decision

making process.

Section 4: Another proviso - To give

equal participation to women in decision

making process.

Section 15: Appeal - To ensure that

the matter be looked into judicially.

THE CONTRACT LABOUR (REGULATION & ABOLITION) ACT, 1970

(117)

Existing Provisions

1


2


3

be of an intermittent nature - i) if is

was performed for more than one

hundred and twenty days in the

preceding twelve months, or ii) if it is

of a season character and is performed

for more than sixty days in a year.

Section 2: Definitions - c) �contractor�

in relation to an establishment, means

a person who undertakes to produce a

given result for the establishment, other

than a mere supply of goods or articles

of manufacture to such establishment,

through contract labour or who supplies

contract labour for any work of the

establishment and includes a sub-

contractor. d)�., e)�.., i)�.., ii)�..,

iii)�.., f)�.., g)��, i)�.., ii)��.,

iii)�.., iv)��h)�., i) �workmen� means

any person employed in or in connection

with the work of any establishment to

do any skilled, semi-skilled manual,

supervisory, technical or clerical work

for hire or reward, whether the terms

of employment be express or implied,

but does not include any such person

� A) ��, B) who, being employed in

a supervisory capacity drawn wages

exceeding five hundred rupees per

mensem or exercises, either by the

nature of the duties attached to the

office or by reason of the powers vested

in him, functions mainly of a managerial

nature; or C)�.

Section 15: 1) Any person aggrieved

by an order made under Section 7,

half of the members nominated shall

be women�.

Section 4: State Advisory Board - After

the proviso of this section another


as - �Provided further that at least

half of the members nominated shall

be women�.

Section 15: Appeal - Following section

shall be substituted - i) any person

aggrieved by an order made under

section 7, section 8, section 12 or

section 14 may, within thirty days from

the date on which the order is

communicated to him, prefer an appeal

to the court of Additional District Judge

or a specially appointed Judicial Officer

by the appropriate government.

Provided that the court or specially

appointed judicial officer may entertain

the appeal after the expiry of the said

period of thirty days, if he is satisfied

that the appellant was prevented by

sufficient cause from filing the appeal

in time. ii) On receipt of an appeal

under sub-section 1), the Court/ specially

appointed Judicial Officer shall, after

giving the appellant an opportunity of

being heard dispose of the appeal as

expeditiously as possible.

Section 17: Rest � rooms - In sub-

section 1) of Section 17 after the words

�rest room� the words �separately for

male and female� shall be inserted. 1)

Section 17: Rest-rooms - Separate

shelters/rest-rooms for male and female

workers would ensure privacy and better

relaxation amongst the workers of both

sex. Moreover, when the Act provide

male and female workers separate

facilities for urinals, toilets, washing

places, storing and drying wet clothes

(suggested), then separate shelters/rest-

rooms would be appreciated.

Section 18: Other Facilities - The

liability to maintain a crèche should

not be linked with the number of women

workers employed in a factory. Instead,

it should be linked with the number of

workers, whether male or female.

Section 21: To ensure the timely

payment of wages to the workmen as

It is generally observed that they are

not paid proper wages on time.

Section 26: Cognizance of offences -

To give a right to file the complain to

an aggrieved person and to an

organisation working for social cause.

Section 31: Power to exempt in special

cases - As it grants unfettered discretion

to the appropriate government to

exempt the application of the Act to

certain establishment.

(118)

section 8, section 12 or section 14 may,

within thirty days from the date on which

the order is communicated to him, prefer

an appeal to an appellate officer who

shall be a person nominated in this

behalf by the appropriate Government.

Provided - that the appellate officer

may entertain the appeal after the expiry

of the said period of thirty days, if he

is satisfied that the appellant was

prevented by sufficient cause from filing

the appeal in time 2) On receipt of an

appeal under sub-section 1), the

appellate officer shall after giving the

appellant an opportunity of being heard

dispose of the appeal as expeditiously

as possible.

Section 17: Rest � rooms � 1) In every

place wherein contract labour is required

to halt at night in connection with the

work of an establishment - a) to which

this Act applies; and b) in which work

requiring employment of contract labour

is likely to continue for such period as

maybe prescribed. These shall be

provided and maintained by the

contractor for the use of the contract

labour such number of rest-rooms or

such other suitable alternative

accommodation within such time as may

be prescribed. 2) The rest-rooms or

the alternative accommodation to be

provided under sub-section 1) shall be

sufficiently lighted and ventilated and

shall be maintained in a clean and

comfortable condition.

In every place wherein contract labour

is required to halt at night in connection

with the work of an establishment � c)

to which this Act applies, and d) in

which work requiring employment of

contract labour is likely to continue for

such period as may be prescribed. There

shall be provided and maintained by

the contractor for the use of the contract

labour such number of rest-rooms

separately for male and female or such

other suitable alternative

accommodation with in such time as

may be prescribed. 2) The rest-rooms

or the alternative accommodation to

be provided under sub-section 1) shall

be sufficiently lighted an ventilated and

shall be maintained in a clean and

comfortable condition.

Section 18: Other Facilities - For

clause a) of Section 18 following clause

shall be substituted - b) a sufficient

number of latrines and urinal, separately

for male and female of the prescribed

types so situated as to be convenient

and accessible to the contract labour

in the establishment; and for clause c)

of section 18 following clause shall be

substituted - c) washing facilities

separately for male and female. A new

clause d)shall be inserted - viz d) crèche

for women with infants and young

children.

Section 20: Liability of principal

employer in certain cases - For Section

Existing Provisions

1


2


3

(119)

Existing Provisions

1


2


3

Section 18: Other Facilities - It shall

be the duty of every contractor

employing contract labour in connection

with the work of an establishment to

which this Act applies, to provide and

maintain - a) a sufficient supply of

wholesome drinking water for the

contract labour at convenient places;

b) a sufficient number of latrines and

urinals of the prescribed types so

situated as to be convenient and

accessible to the contract labour in the

establishment and; c) washing facilities.

Section 20: Liability of principal

employer in certain cases - 1) If any

amenity required to be provided under

section 16, section 17, section 18 or

section 19 for the benefit of the contract

labour employed in an establishment

is not provided by the contractor within

the time prescribed therefore, such a

amenity shall be provided by the

principal employer within such time as

may be prescribed. 2) All expenses

incurred by the principal employer in

providing the amenity may be recovered

by the principal employer from the

contractor either by deduction from any

amount payable to the contractor under

any contract or as a debt payable by

the contractor.

Section 21 : Responsibility for payment

of wages - 1) A contractor will be

responsible for payment of wages to

each worker employed by him as

20 the following shall be substituted -

i) If any amenity required to be provided

under section 16, section 17, section

18 or section 19 for the benefit of the

contract labour employed in an

establishment shall be provided by the

principal employer within such time as

may be prescribed. ii) All expenses

incurred by the principal employer in

providing the amenity may be recovered

by the principal employer from the

contractor either by deduction from any

amount payable to the contractor under

any contract or as a debt payable by

the contractor.

Section 21: Responsibility for payment

of wages - i) It shall be the duty of

the principal employer to make payment

of wages to the contract labour

employed by the contractor and such

wages shall be paid before the expiry

of such period as may be prescribed.

ii) The Principal Employer shall recover

the amount so paid under section 1)

from the contractor either by deduction

from the amount payable to the

contractor under any contract or as a

debt payable by the contractor.


Following section shall be substituted

� �No Court shall take cognizance on

any offence under this Act except on

a complain made by, or with the previous

sanction in writing of the inspector or

any person aggrieved or by a voluntary

(120)

contract labour and such wages shall

be paid before the expiry of such period

as may be prescribed. 2) Every principal

employer shall nominate a

representative duly authorized by him

to be present by the contractor and it

shall be the duty of such representative

to certify the amount paid as wages in

such manner as may be prescribed. 3)

It shall be the duty of the contractor

to ensure the disbursement of wages

in the presence of the authorized

representative of the principal employer.

4) In case the contractor fails to make

payment of wages within the prescribed

period or make short payment, then

the principal employer shall be liable

to make payment of wages in full or

the unpaid balance due, as the case

may, to the contract labour employed

by the contractor and recover the

amount so paid from the contractor

either by education from any amount

payable to the contractor under any

contract so as a debt payable by the

contractor.


No Court shall take cognizance of any

offence under this Act except on a

complaint made by, or with previous

sanction in writing of, the inspector and

no court inferior to that of a Presidency

Magistrate or a magistrate of the first

class shall try any offence punishable

under this Act.

organisation and no court inferior to

that of a Presidency Magistrate or a

magistrate of the first class shall try

any offence punishable under this Act.

Section 27: Limitation of prosecutions

- the following shall be substituted -

This section will read as �No Court shall

take cognizance of an offence

punishable under this Act unless the

complaint thereof is made within

reasonable time from the date on which

the alleged commission of the offence

came to knowledge of an inspect.

Explanation - It will be the discretion

of the court to decide that what would

be the reasonable time depending on

the merit of the cares but is should

not be less than 3 months in any case.

Section 28: Inspecting Staff - An

explanation shall be added after sub-

section i) of Section 28 as below:

Explanation - Whenever a premises /

establishment being inspected is

expected to have women contract labour,

the inspecting staff should include a

woman inspector.

Section 31: Power to exempt in special

cases - Shall be deleted.

In addition the Commission also

recommends the following:

On account of the peculiar nature of

their employment the contract labourers

are denied the fruits of the various

legislation social legislations like

Existing Provisions

1


2


3

(121)

Existing Provisions

1


2


3

Section 27: Limitation of prosecutions

- No Court shall take cognizance of

an offence punishable under this Act

unless the complain thereof is made

within three months from the date on

which the alleged commission of the

offence came to the knowledge of an

inspector. Provided � that where the

offence consists of disobeying a written

order made by an inspector, complaint

thereof may be made within six months

of the date of which the offence is

alleged to have been committed.

Section 28: Inspecting Staff � 1) The

appropriate government may, by


appoint such persons as it thinks fit to

be inspectors for the purposes of this

Act, and define the local limits within

which they shall exercise their powers

under this Act. 2) Subject to any rules

made in this behalf, an inspector may,

within the local limits for which he is

appointed.

Section 31: Power to exempt in Special

Cases - The appropriate Government

may, in the case of an emergency, direct,

by notification in the Official Gazette,

that subject to such conditions and

restrictions, if any, and for such period

or periods, as may be specified in the

notification, all or any of the provisions

of this Act or the rules made there

under shall not apply to any

establishment or class of establishments

or any class of contractors.

Employees State Insurance Act, 1948,

Equal Remuneration Act, 1976,

Minimum Wages Act, 1948 and

Maternity Benefits Act, 1961. This was

also observed by the Supreme Court in

the Female Workers case reported in

2000 (3) SCC 224. In this view of the

matter is recommended that:

a) the contract labourers are

extended all the benefits that are

extended to a regular employee under

labour and welfare legislations.

b) all debts owed by them to their

contractors be waived

c) contract laborers be treated as

workmen within the meaning of the

Workmen�s Compensation Act 1923 for

accidents arising during the course of

employment

d) provisions of the Industrial

Disputes Act 1947 be applicable to the

matters related to contract labourers

e) principles of equal work for equal

pay as envisaged in Article 39 (d) of

the Constitution should be specifically

incorporated in the Act.

f) women labour/welfare officers be

compulsorily provided in establishment

having strength of more than

100employees.

g) Women workers should not be

made to work for more than 12 hours

in a working day and they should not

be compelled to work in the nights.

(122)

Existing Provisions

1


2

Section 74 (1) of the proposed Christian

Marriage Bill, 1999 (Government of

India Draft) says- 1) The Indian Divorce

Act, 1869, the Indian Christian Marriage

Act, 1872, the Indian and Colonial

Divorce Jurisdiction Act, 1940, the

Indian Divorce Act, 1945, and any

enactment corresponding to the Indian

Christian Marriage Act, 1872, in force

in the territories which, immediately

before the first day of November 1956,

were comprised in the State of

Travancore-Cochin and Manipur, are

here repealed.

�By virtue of the4 above provision, once

the referred Bill is passed in the

Parliament and becomes an Act, the

Indian Divorce Act, 1869 will be

repealed�.

The Commission, therefore, proposes to

drop the above referred Act from the

pending list of the Acts which the

Commission is reviewing.


3

THE INDIAN DIVORCE ACT, 1869

(123)

Existing Provisions

1

Section 32 (1) of the Act regarding

production of a child before the Child

Welfare Committee.

Section 33 (1) of the Act regarding

inquiry about a child.

Sub �section 4) and 6) of the Section

41 of the Act regarding adoption.

Section 56 of the Act regarding

authorities competent to discharge and

transfer a Juvenile or a child from one

Children�s Home to another.

Section 59 (2) regarding leave of

absence to any Juvenile or the child,

on special occasions like examination,

marriage of relatives, death of kith and

kin or the serious illness of parent or

any emergency of like nature.


2

Section 32: 1) After sub-section 1) of

section 32 of Act, the following proviso

shall be added viz �Provided that the

Child shall be produced before the

Committee without any loss of time but

within a period of 24 / 48 hours of

child coming to notice excluding the

journey time�. 2) In sub-section 1) (i)

of Section 32, the words �any police

officer� shall be deleted.

Section 33: In sub-section 1) of section

33, the words �or any police officer�

occurring after the words �the

Committee�, shall be deleted.

Section 56: In Section 56 of the Act,

the words, �or the local authority�

occurring after the words, �the

competent authority� shall be deleted.

Section 57: 1) Also the words �or the

local authority� occurring after �the State

Government� in Section 57 of the Act,

shall be deleted.

Section 59: In Sub-section 2) of Section

59, of the words, �for maximum seven

days� shall be replaced by the words,

�for a period generally not exceeding

seven days�.

List of Acts & Legislation

1. The Infant Milk Substitutes, Feeding

Bottles and Infant Foods (Regulation of


3

AMENDMENT TO THE JUVENILE JUSTICE (CARE & PROTECTION OFCHILDREN) ACT, 2000

(124)

Existing Provisions

1


2


3

Production, supply and Distribution) Act,

1992.

2. The Maternity Benefit Act, 1961

(53 of 1961).

3. The Married Women�s Property

Act, 1874 (3 of 1874).

4. The Legal Practitioners (Women)

Act, 1923.

5. Juvenile Justice Act, 1986

6. The Indian Divorce Act, 1969 (4

of 1969)

7. The Contract Labour (Regulation

& Abolition) Act, 1979.

8. The Child Labour (Prohibition and

Regulation) Act, 1986.

9. The Beedi and Cigar Workers

(Conditions of Employment) Act, 1966.

10. The Cinematograph Act, 1952.

11. The Payment of Wages Act, 1936.

12. The Plantation Labour Act, 1951.

13. The Workmen�s Compensation Act,

1923.

PART - B

BILLS PROPOSED

(127)

THE MARRIAGE BILL, 1994

Introduction to Marriage Bill

Why do we want an Indian Marriage Act?

Matrimonial relations are part of the way society organizes and regulates itself. This is true to all civil

society regardless of the religion of the parties. Therefore, there should be one law to govern the status of

matrimony.

2. Secondly, most of the problems that arise in matrimonial relationship are universal. They may additionally

be culture specific, which is not necessarily specific to the religion of the parties. It is important to find

the common thread running through this most universal legal relationship and deal with it within Civil

Law.

3. Thirdly, it is necessary to give emphasis to the fact that rights and duties within matrimony are part of

one�s civil rights and duties and subject tot the overall law of the land, especially the Constitution of

India. It is, therefore necessary to have one law of marriage for all of India.

4. Fourthly, it is necessary to avoid confusion about the basic prerequisites of a legally valid marriage and

its consequent status, regardless of the religion, caste and customs of the two parties. This also applies

to divorce.

5. Fifthly, it is necessary in order to avoid confusion amongst administrators of law and justice about the

prerequisites of marriage and divorce.

6. It is therefore necessary to have one clear law on marriage and divorce. The Indian Marriage Act will,

it is hoped deal with the above situations.

{As approved by the Expert Committee on Laws in its meeting held on 18-19/8/1994}

The Marriage Bill, 1994

A bill to consolidate and amend the law relating to marriages in India, and to provide for their compulsory

registration.

Be it enacted by Parliament in the Forty-fifth year of the Republic of India as follows :

1. Short title, extent, applicability and commencement :-

(1) This Act may be called the Marriage Act, 1994.

(2) It extends to the whole of India.

(3) It applies to all marriages performed in India and to all persons irrespective of race, religion, caste

or creed of the parties.

(128)

(4) It shall come into force immediately on the expiry of three months from the date of assent of the

Bill by the President.

2. Overriding effect of Act :- Except to the extent expressly provided hereafter, the provisions of this Act

shall have overriding effect over all laws in force and all such laws shall cease to have effect in so far

as they are inconsistent with the provisions contained in this Act.

Explanation � The expression �law in force� includes all customs or usages having the force of law and

all personal laws.

3. Conditions for marriage

A marriage may be performed between any person of the male sex and any person of the female sex,

if the following conditions are fulfilled at the time of marriage, namely :-

(a) Such person, in the case of a male, has completed the age of 21 years, and in the case of a

female, has completed the age of 18 years;

(b) Neither party has a spouse living;

(c) The parties to the marriage do not fall within the degrees of prohibited relationship;

(d) Both the parties have consented to the marriage;

Explanation � For the purposes of this section,

(i) �consent� shall not be valid if such consent is �

(a) obtained by force or fraud; or

(b) if either of the parties is incapable of giving consent by reasons of unsoundness of mind.

(ii) two persons are within the �degrees and prohibited relationship� �

(a) if one is a lineal ascendant or descendant of the other; or

(b) if one was the wife or husband of a lineal ascendant or descendant of the other; or

(c) if the two are related as brother and sister.

4. Performance of marriage

(1) A marriage may be performed by both the parties appearing before a Marriage Officer at his

office or at such other place within a reasonable distance from the Marriage Office as the parties

to the marriage may desire, in the presence of three witnesses, by signing a declaration that the

parties fulfill the conditions contained in section 3 by subscribing to an oath in the presence of

the Marriage Officer in a language understood by the parties stating that each takes the other

as his or her lawful wife or husband.

(129)

(2) A marriage may also be performed by the parties in any other form chosen by them.

(3) Where a marriage has been performed under sub-section (2), both the parties to the marriage

shall sign a declaration to the effect that they fulfill the conditions laid down in section 3 and that

the marriage has been duly performed.

(4) The declaration referred to in sub-section (3) shall be signed in the presence of three witnesses

who attended the marriage and may include the priest, kazi or other functionary who performed

the marriage.

(5) The duly executed declaration shall thereafter be forwarded by the parties to the marriage or by

any person on their behalf, to the Marriage Officer within three days of the performance of the

marriage.

(6) A marriage performed under the provisions of this section shall not be called in question on the

ground that �

(a) the parties thereto do not belong to the same religion or caste; or

(b) that any religious or customary rite has not been performed or any practice has not been

followed.

5. Registration of marriage

(1) Where a marriage has been performed in accordance with the provisions of sub-section (1) of

section 4 or where the Marriage Officer receives a declaration referred to in sub-section (5) of

that section, he shall forth with register the marriage by entering the particulars of the marriage

in the Marriage Register which shall be a permanent Register to be kept in the custody of the

Marriage Officer.

(2) The Marriage Officer shall, within a period of fifteen days of registration of marriage under sub-

section (1), issue to each of the parties to the marriage a Marriage Certificate.

6. Correction or cancellation of entry in the marriage register

(1) If it is proved to the satisfaction of the Marriage Officer that any entry in the marriage register

or in the marriage certificate is erroneous, he may, subject to such correction not affecting the

validity of the marriage, correct the error by suitable entry in the margin with signature, date and

seal and issue a fresh certificate of marriage.

(2) No such correction shall be made unless the parties to the marriage certificate shall be presumptive

proof that the marriage has been validly performed.

7. Effect of Registration

(1) Entry in the Marriage Register in respect of a marriage or a marriage certificate shall be presumptive

proof that the marriage has been validly performed.

(130)

(2) If there is no entry in the Marriage Register regarding a marriage it shall presumed that no such

marriage has been performed.

(3) Any person whose marriage is registered under section 5 shall not be subject to any disabilities

including disability in regard to the right of succession to the property of any other person.

(4) Children born during the subsistence of a marriage registered under section 5 shall not be subject

to any disabilities including any disability in regard to the right of succession to the property of

any person.

8. Void marriage

(1) Any marriage performed after the commencement of this Act shall be void if either or both the

parties to the marriage do not fulfill any of the conditions specified in section 3.

(2) Where a marriage is void under sub-section (1), either party to the marriage may, on presentation

of a petition to the court, obtain a declaration to the effect.

9. Voidable marriage

(1) Any marriage performed after the commencement of this Act shall be voidable and may be so

declared by a decree of nullity on a petition presented by either party to the marriage within one

year of the discovery of the fact, that the other party was impotent at the time of the marriage

and such impotence was not within the knowledge of the petitioner.

(2) Any marriage performed after the commencement of this Act shall be voidable and may be so

declared by a decree of nullity on a petition presented by either of the parties within six months

of the date of marriage, if �

(i) the other party willfully refuses to consummate the marriage; or

(ii) the wife was, at the time of the marriage, unknown to the husband, pregnant by some

person other than the husband and the husband had no sexual intercourse with the wife

after the discovery of the fact of pregnancy.

10. Dissolution of marriage by mutual consent

(1) Both parties to a marriage performed before or after the commencement of this Act may jointly

present to the court a petition for dissolution of marriage on the ground that they have mutually

agreed that the marriage should be dissolved and that they have been living separately for a

period not less than three months.

(2) On the motion of both the parties made not earlier than six months after the date of the

presentation of the petition referred to in sub-section (1) and not later than twelve months after

the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied,

(131)

after hearing the parties and after making inquiry as it thinks fit, that the averments in the

petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from

the date of the decree.

11. Dissolution of marriage on other grounds

(1) Either party to a marriage performed before or after the commencement of this Act may present

a petition before the Court the dissolution of such marriage and the court may grant a decree for

dissolution of marriage on any of the following grounds, namely :-

(i) the mutual incompatibility of the parties is such that it is no longer fair to the parties or

either of the parties to kept the marriage alive; or

(ii) the other party has, after the performance of the marriage, had voluntary sexual intercourse

with any person other than his or her spouse, and the petition for dissolution of marriage

is presented within six months of the discovery of such fact; or

(iii) has after the performance of marriage, treated the petitioner with the other party cruelty;

or

(iv) the other party has voluntarily and without reasonable cause deserted the petitioner without

his or her consent for a continuous period of not less than two years immediately preceding

the presentation of the petition, or

(v) the other party has willfully neglected the petitioner for a continuous period of one year

immediately preceding the presentation of the petition; or

(vi) the other party has become addicted to intoxicating liquor or stupefying drugs so as to

render the petitioner�s life miserable or difficult; or

(vii) the other party has taken to a life of crime; or

(viii) the other party is guilty of rape, sodomy or bestiality, including attempts or abetment

thereof; or

(ix) the other party is undergoing sentence of imprisonment for seven years or more for an

offence punishable under any law for the time being in force; or

(x) the other party has been suffering from Acquired Immune Deficiency Syndrome (AIDS),

sexually transmitted disease or leprosy in a communicable form any of the aforesaid diseases

not having been contracted from the petitioner; or

(xi) the other party has been, for a period of not less than one year, of unsound mind or has

been suffering continuously or intermittently from mental disorder of such a kind and to

such an extent that the petitioner cannot reasonably be expected to live with him or her;

or

(132)

(xii) the other party has not been heard of for a period of three years or more by those persons

who would normally have heard of him or her, if her or she had been alive.

12. Limitation

Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any

portion for dissolution of marriage by a decree of divorce, unless at the date of presentation of the petition

one year has elapsed since the date of the marriage.

13. Marriage Officer and District Registrar of Marriages

(1) The Marriage Officer for any geographical area, for the purposes of this Act, shall be the person

competent to make entries in the Register of Births and Deaths for that area or such other person

as may be designated as Marriage Officer for that area by the State Government.

(2) There shall be a District Registrar of Marriages for every district who may be such officer as may

be appointed by the State Government or, in the absence of such appointment, the District

Registrar of Assurances.

(3) The duties of a Marriage Officer shall be those which he is required to perform under this Act

and the rules made thereunder.

(4) The Marriage Officer shall forward to the District Registrar of Marriages copies of the entries in

the Marriage Register in duplicate and one set of all such returns arranged area-wise shall be kept

as permanent record in the custody of the District Registrar of Marriages.

(5) The Marriage Officer may within two months of the making of any entry in the Marriage Register

correct any error which may have crept into such entry provided that no such correction shall be

made unless the parties of the marriage or their legal representatives have been given a reasonable

opportunity of being heard. Copies of the corrected entry shall be communicated to the District

Registrar of Marriages and dealt with in the manner specified in sub-section(4).

14. Maintenance, residence, etc. of spouses pendent lite and thereafter

(1) where a petition for relief under the provisions of this Act is presented, the Court may make

appropriate interim orders for the maintenance, residence, litigation, medical and other necessary

expenses of either spouse which may be rescinded, varied or suspended from time to time.

(2) The Court may at the time of passing of the decree, either allowing or rejecting the petition, make

appropriate orders for the residence, maintenance, medical and other necessary expenses of

either spouse. Such order may direct the payment of a gross sum of money, the payment of a

periodical sum, the payment partly of a gross sum and partly for a periodical sum, the settlement

of property with absolute or life interests, the allotment of the whole or part of the matrimonial

home, the allotment of other residential accommodation belonging to the family or to the possession

of which either spouse is entitled, the payment of a gross and/or a periodical sum towards

(133)

procurement and rent of suitable residential accommodation and /or such other adequate provision

for maintenance, residence, medical and other expenses as the Court may deem expedient.

15. Custody, maintenance, etc., of children of marriage pendente lite and thereafter

Where a petition under the provisions of this Act is presented, the Court may, from time to time, during

the pendency of such petition, at the time of the passing of the decree either allowing or rejecting the petition

or thereafter, make appropriate orders for the custody, maintenance, education, medical and other expenses

of the children of the marriage. Such orders may be revoked, varied or suspended from time to time. The order

for the custody of the children shall be in accordance with the provisions of the Minority and Guardianship

Act, 1994.

16. Status of children of void, voidable and dissolved marriage

Notwithstanding anything contained in any other law for the time being in force, the children of a

marriage declared void or voidable by this Act or dissolved under the provisions of this Act shall be considered

legitimate children of the parties to the marriage for all purposes including succession to the property of either

of the parties to the marriage and they shall not be subjected to any disability whatsoever.

17. Penalties

(1) Any person who is required to forward the declaration specified in sub-section (5) of section 5 to

the Marriage Officer and fails to do so within the time prescribed shall be punishable with

imprisonment which may extend to two years or with fine or with both :

Provided that were the declaration is not forwarded within three days but is forwarded within one

month after the marriage, such offence may be compounded by the Marriage Officer on payment

of a compounding fee calculated at the rate of one hundred rupees for each day�s delay.

(2) Any person who forwards a false declaration relating to a marriage to a Marriage Officer or who

makes a false declaration before a Marriage Officer shall be punishably with imprisonment of

either description which shall not be less than one month, which may extend to seven years or

with fine or with both.

(3) Any person who procures the making of false entries in a Marriage Register shall be punishable

with imprisonment of either description which may extend to seven years with fine or with both.

(4) Any Marriage Officer who fails to make entries in the Register of Marriage as provided in sub-

section (1) of section 13 or who knowingly makes false entries in the Register, shall be punishable

with imprisonment of either description which may extend to seven years or with fine or with both.

(5) Any person who destroys, mutilates or tampers with the Register of Marriages or any entry therein

shall be punishable with imprisonment of either description which may extend to seven years or

with fine or with both.

(134)

(6) An attempt to commit or the abetment of any of the offences specified in sub-sections (1), (2),

(3), (4) or (5) shall be punishable in the same manner as the offences under the respective sub-

sections.

(7) Any person who fails to comply with the order of the Court passed under section 14 or section

15 shall be punished with imprisonment of either description which shall not be less than three

months but which may extend to seven years or with fine which shall not be less than the amount

of maintenance due.

(8) When the Court imposes a sentence of fine or sentence of which the fine forms a part, the Court

may while passing the judgement, order the whole or any part of the fine recovered to be paid

to the petitioner in lieu of the maintenance which is due to the applicant recovered to be paid

to the petitioner in lieu of the maintenance which is due to the applicant.

18. Court to which petition should be made:-

(1) Every petition under this Act shall be presented to the Family Court with the local limits of whose

original civil jurisdiction-

(i) the marriage was performed; or

(ii) the respondent, at the time of the presentation of the petition resides; or

(iii) the parties to the marriage last resided together or

(iv) the petitioner is residing at the time of the presentation of he petition, in case where the

respondent is, at that time, residing outside the territories to which this Act extends or has

not been heard of as being alive for a period of seven years by those who would naturally

have heard of him if he were alive.

(2) Without prejudice to any jurisdiction exercisable by their Court under sub-section (1) the Family

Court may, by virtue of this sub-section, entertain a petition by a wife domiciled in the territories

to which this Act extends for nullify of marriage or for divorce if she is resident in the said

territories and has been ordinarily resident, there in for a period of three years immediately

proceeding the presentation of the petition and the husband is not resident in the said territories.

19. Family Courts

(1) There shall be one or more Courts designated as Family Courts in every district who shall have

exclusive competence to entertain and try suits in respect of all matters arising under this Act and

no other court shall entertain and try any such suit.

(2) The exclusive competence of the Family Courts shall also extend to criminal cases arising out of-

(i) Offences punishable under this Act ;

(135)

(ii) Contravention of clause (b) of sub-section (1) of section 3 of this Act, being offence

punishable under section 494 of the Indian Penal Code;

(iii) Offences punishable under section 493,495,496,497,498,498-A of the Indian Penal Code;

and

(iv) Offences punishable under section 5 and 6 of the Child Marriage Restraint Act, and offences

relating to domestic violence.

(3) When exercising jurisdiction under, sub-section (1), the Family Court shall have all the powers of

an ordinary civil court of unlimited pecuniary jurisdiction. The procedure shall be as laid down in

the code of Civil Procedure except that on the date of the first appearance of the parties a time-

schedule shall be worked out which shall not be departed from save for grave and exceptional

reasons however that the entire proceedings including the pronouncement of judgement shall be

concluded within six months from the date of institution.

(4) When exercising jurisdiction under sub-section(2), the Family Court shall have all the powers of

a magistrate of the First Class and may pass any sentence which may be passed by the Court of

a Chief Judicial Magistrate. The procedure shall be as laid down in the Code of Criminal Procedure

except that on the date of the first appearance of the accused a time schedule shall be worked

out which shall not be departed from save or grave and exceptional reasons so however that the

entire proceedings including the pronouncements of judgement shall be concluded within six

months from the date of institution.

20. Appeal

There shall lie an appeal to the High Court from every final judgement to the Family Court. The period

of limitation for filing an appeal shall be thirty days from the date of the decree and such appeal shall be

heard and disposed of within three months from the date of filing of the appeal.

21. Rules

(1) The Central Government may make rules for the purpose of giving effect to the provisions of the

Act by publication in the Gazette of India.

(2) The High Court may make rules for the purpose of giving effect to the provisions of section 19

sub-section (3) and (4) and section 20.

22. Repeal.

The Indian Christian Marriage Act, 1872, the Parsi Marriage and Divorce Act, 1936, the Muslim Personal

Law (Shariat) Application Act, 1937, Dissolution of Muslim Marriage Act, 1939, in so far as it applies to

marriage, dissolution of marriage including talaq, ila, zihar, lian, khula and mubaratt, the Special Marriage

Act, 1954, the Hindu Marriage Act 1955, and the Muslim Women (Protection of Rights on Divorce) Act, 1986

shall stand repealed and the General Clauses Act, 1897 shall apply to such repeal.

(136)

23. Consequential amendments to Act 33 of 1969 �

The Foreign Marriage Act, 1969 shall stand amended as directed in the Schedule.

The Schedule

1. Throughout the Act, for the word �solemnized� wherever it occurs, the word �performed� shall be

substituted, and such amendments as the rules of grammer may require shall also be made.

2. clause (a) of section 2 shall be omitted.

3. For section 4, substitute

4. Conditions relating to performance of foreign marriages. � A marriage between parties one of whom

atleast is a citizen of India may be performed under this Act, by or before a Marriage Officer in a foreign

country, if the following conditions are fulfilled at the time of marriage, namely :-

(a) such person, in the case of a male, has completed the age of twenty-one years; and in the case

of a female, has completed the age of eighteen years;

(b) neither party has a spouse living;

(c) the parties to the marriage do not fall within the degrees of prohibited relationship.

(d) both the parties have consented do the marriage,

Explanation � For the purpose of this section, �consent� shall not be valid if such consent is �

(a) obtained by force or fraud; or

(b) if either of the parties is incapable of giving consent by reason of unsoundness of mind.

(ii) two persons are within the �degrees of prohibited relationship� �

(a) if one is a lineal ascendant or descendant of the other; or

(b) if one was the wife or husband of a lineal ascendant or descendant of the other ; or

(c) if the two are related as brother and sister;

In section 18

(a) For the Short title and sub-section (1), the following shall be substituted, namely:

�Matrimonial relief�s to be under the Marriage Act, 1994.

(1) Subject to the other provisions contained in this section, the provisions of sections 8,9,10,11

and 12 of the Marriage Act, 1994 shall apply in relation to marriages performed in a foreign

country between parties of whom one atleast is a citizen of India, as they apply in relation

to marriages performed under that Act.�

(137)

(b) In sub-section (2),

(i) for the words and �Chapter V or Chapter VI of the Special Marriage Act, 1954�, the words

and figures� sections 8,9,10 and 11 of the Marriage Act 1994� shall be substituted.

ii) For the words �the District Court� the words �the Family Court� shall be substituted.

(iii) For the �Explanation� the following Explanation shall be substituted, namely:

Explanation �In this section, �Family Court� has the same meaning as in the Marriage Act, 1994 :

(c) In clause (d) of sub-section (3), for the words and figures �Chapter V or Chapter VI of the Special

Marriage Act, 1954�, the words and figures �section 8, 9, 10 and 11 of the Marriage Act, 1994�

shall be substituted.

(d) In sub-section (4), for the words and figures, �the Special Marriage Act, 1954� the words and

figures �the Marriage Act, 1994� shall be substituted.

5. Section 29 shall be omitted.

(138)

THE DOMESTIC VIOLENCE TO WOMEN (PREVENTION) BILL

Introduction

The Committee of Experts considered aspects pertaining to domestic violence with a view to providing

legal remedies to the distressed victims, taking note of the Indian conditions. It recommends the accompanying

Draft Bill, titled, �The Domestic Violence to Women (Prevention) Bill� for adoption. The background relating

to domestic violence and the salient features of the Draft Bill are given below:

2. The term �domestic violence� is wide and encompasses in it scope all types of violence resorted to within

the precincts of a home whether by male or female members of a family. But the overwhelming majority

of victims of domestic violence are women. To be sure all such acts are punishable under the provisions

of the Indian Penal Code, 1861. Nonetheless resort to the general law of the land is very seldom made

by the women-victims of domestic violence owing to a variety of factors. Some of these factors are :

a) close familial relationship b) dependency, financial or otherwise, c) lack of legal literacy, and d)

helplessness of the victims. Most of these cases go unreported and give rise to serious human problem.

3. Studies have pointed out that family violence is cyclic and is apt to pass from one generation to another;

that children who had experienced violence are more likely to be violent towards wife and children in

their adult-life, and that in order to reduce societal violence, it is necessary to reduce violence within

the family.

4. A prominent type of domestic violence in India is dowry-related domestic violence. In recent years

considerable number of legislations were enacted and amendments to legislations were made to curb

the evil. The Criminal Law (Second Amendment) Act, 1983 introduced the new offence of cruelty under

section 498-A; section 174 of the Criminal Procedure Code was amended to secure post mortem in case

of death or suicide of a married girl; section 113-A was inserted in the Indian Penal Code. In view of

these specific legislative provisions, the Draft Bill limits itself to other forms of domestic violence against

women.

5. Domestic violence has been given a wide definition. It includes not only conduct which amounts to

cruelty but also includes any act which is unbecoming of the dignity of the women. Clause 3 of the Draft

Bill states that the provisions of the Domestic Violence to Women (Prevention) Act are in addition to and

not in derogation of any other law.

6. The Committee considered the �Model Law Against Domestic Violence� of the Lawyers Collective sent

by Ms. Indira Jaising. The Draft sent by her is heavily based on Lisa G. Lerman�s �A Model State Act:

Remedies for Domestic Abuse� published in Harvar Journal of Legislation. This Model State Acts does

not at all take into consideration the social milieu and conditions in India. For this reason the Model

State Law was found to be unsuitable. The other foreign legislation noticed by the Committee was the

Domestic Violence and Matrimonial Proceedings Act, 1976 of the U.K. Under this a party to a marriage

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is entitled to get an injunction from a Country court restraining the other party from molesting the

applicant or a child living with the applicant. The injunction may also contain a provision excluding the

other party from the matrimonial home or any part of it. Further, if the judge is satisfied that actual

bodily harm has been caused to the party to a marriage or a child of the spouse, it may attach a power

of arrest to the injunction for its breach; thereby a constable is empowered to arrest a person committing

the breach of the injunction without a warrant.

7. Some of the factors which inhibit or discourage women-victims from seeking the available legal remedies

have been mentioned before. The approach of the Draft Bill to meet these problems may be pointed

out.

8. On of the major difficulties faced by victims of domestic violence is their inability to approach the courts

for relief as they (courts) are located in urban centres. This is specially so in case of victims drawn from

rural areas. The Draft defines a �court� in wide terms as including a Family Court, a Civil Court and

a Mahila Panchayat consisting of three women members of a Gram Panchayat, if so declared by a State

Government. The creation of Mahila Panchayats as courts takes note of the socio-cultural context that

prevails in rural areas and will help in rendering speedy justice in cases of domestic violence.

9. The existing delays in getting a legal remedy in cases of domestic violence discourage a victim, or a

relation of the victim or a social worker who wants to aid the victim from seeking relief. Therefore clause

4 of the Draft Bill proposes a time-frame in the matter of disposal of the petitions. First, if the court

is satisfied on a consideration of the statement made in the petition, it can forthwith make a Protection

Order, even ex-parte, and fix a date for further consideration of the petition. Second, in case it is not

satisfied with the statement made in the petition, it will fix a date without making an order; but the date

so fixed should not be more than 7 days from the date of issue of notice to the concerned persons. Sub-

clause 8 of clause 4 of the Draft envisages that the court should dispose of the petition expeditiously

and not later than 3 months from the date of filing of the petition.

10. Experience shows that lack of living accommodation primarily makes a woman suffer silently the battering

given by the husband or other male relative. To meet this difficulty clause 5 of the Draft Bill says that

the Protection Order direct that the woman shall live separately from her husband and the matrimonial

home be given to the wife for her separate living. The term �matrimonial home� includes accommodation

that is rented as well as belonging to the joint family. The Draft also envisages that in case the battered

woman is unmarried or widow or divorce, the Protection Order will direct separate living accommodation

be provided for her living. Lack of financial support and fear of losing the custody of children force

victims of violence to lead a captive existence. To overcome this the clause 5 empowers the court to

grant maintenance to the wife and children living with her, and give directions with respected to �such

other matters as may be considered necessary�.

11. The Draft envisages a key-role to Protection Officers. The term Protection Officer cover not only an

officer appointed by the State Government but also any institution or organization designated by the

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State Government to perform the functions of a Protection Officer in relation to an area. Thus it

envisages a role to non-governmental organizatios in combating the problem of domestic violence. If,

the helpless conditions of women does not permit her to file a petition for Protection Order, any person

on her behalf or a Protection Officer can file a petition for securing the remedies.

The Domestic Violence to Women (Prevention) Bill, 1994

A Bill

To provide for the prevention of domestic violence to women and for matters connected therewith or

incidental thereto

Be it enacted by Parliament in the Forty-fifth Year of the Republic of Idnia as follows:

1. Short title, extent and commencement

(1) This Act may be called the Domestic Violence to Women (Prevention) Act, 1994.


(3) It shall come into force on the 1st day of January, 1995.

2. Definitions

In this Act, unless the context otherwise requires.

(a) �Court� means, in any area for which there is a Family Court established under the provisions of

the Family Court established under the provisions of the Family Courts Act, 1984, that Court, and

in any other area, the principal civil court of original jurisdiction, and includes any civil court or

a Mahila Panchayat consisting of three women members of a Gram Panchayat which the State

Government may, by notification, specify as the court competent to deal with all or any of the

matters specified in this Act:

(b) �domestic violence� means any of the following acts committed on a woman by her husband or

any of his or her relatives, namely

(i) any willful conduct which -

(A) is of such a nature as is likely to drive the woman out of the house or commit suicide

or to injure herself; or

(B) causes injury or danger to the life, limb or health (whether mental or physical) of the

woman; or

(ii) harassment which causes distress to a woman; or

(iii) any act which compels the woman to have sexual intercourse against her will either with

the husband or any of his relatives or with any other person; or

(141)

(iv) any act which is unbecoming of the dignity of the woman; or

(v) any other act of omission or commission which is likely to cause mental torture or mental

agony to the woman;

(c) �notification� means a notification published in the Official Gazette;

(d) �Prescribed� means prescribed by rules made under this Act;

(e) �Protection Officer� means an officer appointed by the State Government in relation to or for the

purposes of this Act and includes any institution on organization designated by the Government

to perform the functions of a Protection Officer under this Act, in relation to an area;

(f) �Protection Order� means an order made under this Act for the protection of a woman subject

to domestic violence and for such other provisions like separate stay, maintenance and the

prevention of further domestic violence;

(g) �relative� includes any person related by blood, marriage or adoption.

3. Act not in derogation of any other law;

The provisions of this Act shall be in addition to, and not in derogation of the provisions of any other

law, for the time being in force.

4. Presentation of petition to Court

(1) Any woman subject to domestic violence or any other person on her behalf or a Protection Officer

may, without prejudice to the provisions of this Act, or of any other law for the time being in force,

present a petition to the court for the passing of a Protection orer.

(2) A petition presented under sub-section (1) shall, among other things, contains the following

particulars, namely:

(a) the name and particulars of the woman subject to domestic violence or if the petition is

presented by any other person, the particulars also of such other person;

(b) the name and address of the husband or the relative who has committed domestic violence.

(c) the nature of domestic violence;

(d) all other particulars which would be necessary for the issue of a Protection Order.

(3) On receipt of a petition under sub-section (1), and on consideration of the statements made

therein, and the evidence produced, if the Court is satisfied that a Protection Order may properly

be madeforthwith, it may make such order ex-parte, and shall fix a date for further consideration

of the petition.

(142)

(4) If, on consideration of the petition under sub-section (3), the Court is not so satisfied, it shall fix

a date for further consideration of the petition without making any Protection Order.

(5) The notice of the date fixed under sub-section (3) or sub-section (4), which shall be more than

seven days from the date of issue of such notice, shall be given to the petitioner, or if the

petitioner is not the woman subject to violence, to the woman and the Protection Officer, her

husband or the relative who has been committing domestic violence and to any other person to

whom in the opinion of the Court, such notice shall be given.

(6) A notice given under sub-section (3) or sub-section (4) shall be served on all the persons to whom

it is intended, sufficiently in advance of the date of hearing, and if is not possible for any reason

to serve such notice on any of the parties, it shall be pasted on the main door of the premises

in which the person to whom the notice is intended is known to have last resided or worked for

gain, in accordance with the provisions specified in the Code of Civil Procedure, 1908 for such

service, and any notice so served shall be deemed to have been validly served on the party to

whom it is intended to be served and shall not be called in question in any court on the ground

that the notice had not been validly served.

(7) On the date fixed under sub-section (3) or sub-section (4) or on such date or dates to which the

hearing may be adjourned and after hearing the parties, the Court is satisfied that the woman is

subjected to domestic violence, it may pass a Protection Order, and if it is not so satisfied, it shall

dismiss the petition setting forth the reasons for such dismissal;

(8) Every endeavour shall be made by the Court hearing the petition under this Act to dispose it of

expeditiously and in any case not later than three months from the date of presentation of the

petition.

(9) Where any of the parties to the petition so desire, the Court shall on an application made by such

party, conduct the proceedings in camera.

(10) A copy of the Protection Order shall be forwarded to the Protection Officer and to all the parties

concerned.

(11) A protection Order made under the section shall be in force for such period not exceeding four

years as the court may fix.

5. Contents of Protection Order

The Protection Order shall contain, among other things, the following matters, namely:

(a) directing the husband or the relative to desist from committing any domestic violence;

(b) directing in all cases that the wife live separately from her husband, alongwith the children, if any,

and the matrimonial home be given to the wife for her separate living;

(143)

Explanation For the purpose of this clause, �matrimonial home� means the accommodation in

which the husband and the wife lived together immediately before the presentation of the petition,

and if such accommodation happens to be rented or belonging to a joint family in which the

husband is a member, that house or part of the house;

(c) where the woman subject to domestic violence is unmarried, widow, divorcee or deserted, directing

that separate accommodation be provided for her living alongwith the children, if any;

(d) directing that the expenses of such separate living be borne by the husband or relative;

(e) directing the husband or relative to pay such maintenance to the wife or any children staying with

her;

(f) such other matters as may be considered necessary.

Explanation. For the removal of doubts, it is hereby declared that in the cases covered under clause (e),

no maintenance will be provided under any other law for the time being in force.

6. Duties of the Protection Officer

(1) It shall be the duty of the Protection Officer to make himself aware of all the domestic violence

being committed in the area for which he is appointed and try to settle it peacefully and amicably

between the parties.

(2) Without prejudice to sub-section (1), it shall be within the competence of the Protection Officer,

on an application presented to him by the woman subject to domestic violence or any other person

on her behalf to arrive at a mutual settlement or on the failure of the parties to arrive at any

settlement, to file a petition to the Court under this Act.

(3) It shall also be the duty of the Protection Officer to see that the provisions of the Protection Order

are complied with.

7. Protection Officer to be a public servant.

The Protection Officer shall be deemed to be a public servant within the meaning of section 21 of the

Indian Penal Code.

8. Power to call for information of document.

The Protection Officer may, for the purposes of efficient performance of his duties specified in section

6, required any person or authority to furnish any information or document and it shall be the duty of such

person or authority to furnish such information or document.

9. Consequential amendment to the Indian Penal Code and the Code of Criminal Procedure 1973.

(1) In Chapter XX-A of the Indian Penal Code, 1860, after section 498-A, the following section shall

be inserted, namely,

(144)

�498-B. Husband or relative of husband or of he woman subjecting her to domestic violence.

Whoever, being the husband or the relative of the husband or of the woman, subjects such woman

to domestic violence shall be punished with imprisonment for a term which may extend to three

years and shall also be liable to fine.

10. Power to make rules

The State Government may by notification make rules to carry out the provisions of this Act.

(145)

THE ORPHAN AND DESTITUTE CHILDREN (ADOPTION) BILL 1994

Introduction

The various Non-Government Organizations and institutions concerned with the welfare of the children

in the country had been demanding the enactment of a law governing adoption so as to enable orphan and

destitute children to be adopted by affluent sections of the society in India so as to provide for them a healthy

environment and better opportunities for developing their faculties and to regulate the conditions governing

the adoption of children by foreigners.

2. The Central Government introduced two bills in Parliament one after another to provide for general

adoption in pursuance of the recommendations of the Law Commission of India. But they met with stiff

opposition and had to be dropped. The Hindu Adoption and Maintenance Act provides for adoption

among the Hindu community and there is no general law of adoption in the country. Taking into

consideration the necessity for a general Law of adoption and the possible objection it may also receive

as in the case of the earlier Bills, the National Commission for Women has prepared a Bill to provide

for adoption of Orphan and Destitute Children instead of a general adoption Bill. It is felt that such a

law would be accepted by Parliament and the general community at large. A copy of the Bill is produced

herewith. The provisions of the Bill were discussed in depth by the members of the Expert Committee

on Law and judiciary appointed by the National Commission and has also been approved by the National

Commission.

3. The titles to the Bill make it specifically clear that the objective of the Bill is the rehabilitation of orphan

and destitute children and to give them an opportunity for achieving a better life by enabling them to

be adopted. To eliminate or to meet certain possible objections that may be made by the minority

communities, suitable preamble has been included in the Bill to make it clear that the objective of the

Bill is to fulfill the Constitutional mandate as contained in the Directive Principles of State Policy. The

Bill provides for the adoption of children of both the sexes and the existence of one or more children

to the adoptive parents would not be a disqualification.

4. The Bill as mentioned above, provides for the adoption of only orphan and destitute children. All such

adoptions in future are to be made in accordance with the provisions of this Act and any adoption made

in contravention of this Act shall be void and of no effect. The adoption should be made under the

provisions of the proposed Bill by an Adoption Order made by the District Court on an application by

the person who intends to adopt. The qualifications for a person to adopt have also been indicated in

the Bill to include that the adoptive father should have completed 25 years of age and is of sound mind.

A married couple should adopt jointly and the proposed child should be younger to the adoptive parents

by at least 25 years. And child who is not already adopted and whose adoption has been revoked is

eligible to be adopted again under the provisions of this Act. The consent of the parents of necessary

before the adoption is made. The matters to be considered by the District Court before an Adoption

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Certificate are required to be issued by the District Court. The proceedings will also be made in camera

and appeals against the order of the District Court would be to the High Court concerned. The Bill also

provides for the effect of making an adoption and sufficient provisions have also been made for

absorption of the adopted child by the adoptive family. The Bill also provides for licensing of institutions

as a social welfare institution under the proposed legislation which are at present unable to give in

adoption of their inmates. The institutions are required to obtain licenses issued by the State Government

and detailed, disciplinary provisions will be indicated in the Rules to be made by the State Government.

Special restrictions have also been indicated for the removal of children for adoption outside India.

The Orphan and Destitute Children (Adoption) Bill, 1994

A Bill

To provide for the rehabilitation of orphan and destitute children by giving them succour and an

opportunity for achieving a better life by enabling them to be adopted and for matters connected therewith

and incidental thereto;

2. Whereas a large number of orphan and destitute children are languishing in orphanages, other houses

and institutions and lodging for care, affection and protection in family surroundings which would enable

them to achieve a better life and obtain the necessary benefits and proper atmosphere, background and

education so essential to children of all ages so as to make them responsible citizens;

3. And whereas the Constitution of India enables the State to make special provision for children and also

enjoins the State to direct its policy towards securing, among other things, that children are given

opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and

that childhood and youth are protected against exploitation and against moral and material adjustment;

4. And whereas one of the means to secure the objectives of providing healthy surroundings to children

so as to enable them to develop their mental faculties in a free and dignified manner is to allow such

orphan and destitute children, both female and male, to be adopted with the object or providing them

warmth and affection and above all, a better life;

5. And whereas the objective of allowing such adoption is only to provide for a better life to children,

children of both sexes should be permitted to be adopted and the existence of one or more children to

the person who intends to adopt or the adoption by him of more than one child should not be made

a disqualification so long as he is able to provide not all of them the necessary facilities;

6. And whereas it is necessary to regulate the practice and procedure relating to such adoption;

7. Now, therefore, it is enacted by Parliament in the Forty-fifth Year of the Republic of India as follows :-

1. Short title, extent and commencement

(1) This Act may be called the Orphan and Destitute Children (Adoption) Act, 1994.

(147)


(3) It shall come into force on such date as the Central Government may by notification in the

official gazette, appoint.

2. Definitions.

In this Act, unless the context otherwise requires :-

(a) � adoption order� means an order made by the Court under section 5 for the adoption of a child;

(b) �child� means an orphan and a destitute child;

(c) �District Court� means the city civil court or a District Court within the local limits of whose

jurisdiction the child to be adopted ordinarily resides and includes any other Court specified by

the State Government to be a District Court;

(d) �guardian� means a person having the care of the person of a child or of both his person and

property, and includes a guardian appointed by a will or other instrument executed by the child�s

father or mother, or approved or declared by a Court;

(e) �institution� means a body of persons having under its control a child care centre, by whatever

name called, and licensed as a social welfare institution by the State Government;

(f) �natural father and �natural mother� in relation to an adopted child refers to the biological parents

of the child;

(g) �orphan and destitute child� means any child who has been abandoned by both his father and

mother, or by the guardian or by his father or mother, or whose parentage is not known, or whose

father and mother are dead or have completely and finally renounced and world or have been

declared by a Court of competent jurisdiction to be of sound mind.

(h) �parent� in relation to an adopted child, means the adoptive parent�

(i) �prescribed� means prescribed by rules made under this Act.

3. Existing laws to continue in force.

The provisions of this Act shall be in addition to, and not in derogation of, any other law for the time

being in force.

4. Adoptions to be regulated by this Act.

(1) Save as otherwise provided in any law for the time being in force, or in any custom, no adoption

of a child shall be made except in accordance with the provisions of this Act and any adoption

made in contravention of such provisions shall be void and of no effect.

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(2) An adoption which is void shall not create any rights in the adoptive family in favour of any person

which he or she would not have acquired except by reason of the adoption, nor destroy the rights

of such person in the family of his or her birth.

5. Power to make adoption order.

(1) A child may be adopted under this Act by an adoption order made by the District Court in that

behalf and not in any other manner.

(2) Subject to the provisions of this Act, the District Court may, upon an application made in the

prescribed form and manner by any person for the adoption of a child, make an adoption order

in respect of such child.

6. Persons who may adopt.

(1) Any person who has completed the age of twenty-five years and is of sound mind may adopt a

child under this Act.

Explanation � In the case of adoption of child by spouses, the requirement as to age under this

sub-section shall be deemed to have been satisfied if either of the spouses has completed the age

of twenty-five years.

(2) A person who is married shall be entitled to adopt a child by himself or herself alone, but the

husband and wife, shall-jointly adopt a child.

(3) The person or each of the persons seeking to adopt a child shall be older than the child by atleast

twenty-one.

Provided that the District Court may dispense with the requirements of this sub-section in any case

if it is satisfied that there may be special circumstances which render it necessary to do so.

(4) For the removal of doubts; it is hereby declared that the existence of a child or children, whether

female or male, to the person who intends to adopt shall not, by virtue of such existence alone,

be a disqualification for adoption under this Act.

7. Persons who may be adopted.

(1) Any child who is not already adopted, or if adopted, such adoption has duly been revoked under

section 15 or is not married, may be taken in adoption.

(2) No adoption order shall be made where the sole applicant for an adoption is a male and the child

to be adopted is a female, unless the District Court is satisfied that there are other special

circumstances which justify the making of an adoption order.

8. Consent

An adoption order in respect of a child shall not be made :-

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(a) in any case, except with the consent of the person who is his parent or guardian; or

(b) where the child is in the care of an institution, except with the consent of the institution given

on its behalf by its social worker, or in-charge of its management;

Provided that the District Court may dispense with the guardian�s consent, if it is satisfied that

the guardian �

(i) has abandoned, neglected or persistently ill-treated the child or has persistently failed,

without reasonable cause, to discharge the obligations of a guardian of the child; or

(c) Any consent to a adoption of a child given under this section shall not be withdrawn except with

the permission of the District Court.

9. Jurisdiction

Every application for an adoption order shall be made to the District Court having jurisdiction in the

place where the child ordinary resides.

10. Matters to be considered in making adoption orders.

(1) The District Court, before making in adoption order -

(a) shall be satisfied that every person or any institution whose consent is required under this

Act, has consented to and understood the nature and effect of adoption order.

(b) when the child is in the care and custody of an institution, the Court shall see that the child

is free for adoption, and for that purpose the Court shall ensure that the institution had

taken proper consent of child�s natural father or mother, or both, or of the guardian, as the

case may be, and they had understood that the effect of such consent will be permanently

to deprive them of their rights;

(c) that the child is properly � committed� to the institution under the Juvenile Justice Act,

1986;

(d) shall satisfy itself that the order, if made will be for the welfare of the child;

(e) shall satisfy itself that the applicant has been properly evaluated by the institution or by way

of interview and home visit through a process called �Home Study� or �Family Assessment�;

(f) may recommend a suitable period for foster care, depending upon the circumstances of the

case

(g) may impose such terms and conditions like submission of follow up reports of otherwise as

it may think fit and in particular may require the adopter by bond or otherwise to make for

child such provision, if any, as in the opinion of the Court is just and proper for the financial

security of the child.

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(2) In determining whether an adoption order, if made, will be for the welfare of the child, the District

Court shall have regard ( among other things) to the health and the financial condition of the

applicant as evidenced, in such cases as may be prescribed, by the certificate of a registered

medical practitioner or from a bank of financial institution, as the case may be.

11. Adoption Order and Adoption Certificate

Upon satisfaction as specified in section 7, the District Court shall pass an adoption order and shall

issue an adoption certificate in the prescribed form.

12. Proceedings to be taken �in camera�

Subject to the provisions of this Act and the rules made thereunder, every application for an adoption

order and proceedings in relation to an adoption, shall be heard �in camera� and shall be determined by the

District Court within a reasonable period from the date of such application.

13. Appeals

(1) Any person aggrieved by an order of the District Court allowing or dismissing an application for

an adoption order may, within thirty days from the date of such order, prefer an appeal to the

High Court.

(2) The High Court shall subject to the provisions of this Act, have the same powers, jurisdiction and

authority and follow the same procedure with respect to an appeal under this section as if the

appeal were an appeal from an original decree passed by the District Court.

14. Effect of adoption order.

(a) An adoption order shall take effect on such date as may be specified therein by the District Court

of where an appeal has been preferred under section 13 against such order, on such date as may

be specified in the appellate order.

(b) A child in respect of whom an adoption order is made shall be deemed to be the child of the

adopter or adopters, and the adopter or adopters shall be deemed to be the parent or parents

of the child as if the child had been born to that adopter or adopters in lawful wedlock for all

purposes and the parents will be entitled to maternity leave or adoption leave (leave at par with

maternity leave), that is to say, the adoptive father or the adoptive mother, as the case may be,

shall be entitled to leave for three months from the date of adoption:

Provided that-

(a) it shall not be competent for the adopted child to marry any person whom the child could

not have married if he or she had continued in the family of his or her birth;

(b) any property which vested in the adopter child immediately before the date of which the

adoption child subject to the obligations, if any, attaching to the ownership of such property

including the obligation, if any, to maintain the relatives in the family of his or her birth:

(151)

(c) adopted children shall not be counted for any family planning measures.

(3) Notwithstanding anything contained in any other law, where the particulars relating to the birth

of a child in respect of which an adoption order is made have been registered under any law

relating to registration of births, the officer or authority for the time being empowered to give

certified extracts of such particulars shall, upon an application made by or on behalf of the child

and upon being satisfied that the adoption order in respect of the child has taken effect, issue

or cause to be issued a certificate of such particulars setting out the names of the adoptive

parents in place of the names of the natural parents of the child.

15. Special provision for protection of adopted children.

(1) The District Court-

(i) upon receiving from any person an application in the prescribed form in this behalf, or

(ii) upon a report by any officer authorized in this behalf by the State Government or

(iii) upon its own knowledge or information, may, by notice, requires the parent or a child

adopted under this Act to produce such child if the Court has reason to believe that the

Child.-

(a) is habitually neglected or subjected to cruelty; or

(b) lives or is made to live by begging; or

(c) lives or is made to live in circumstances calculated to cause, encourage or favour the

seduction or prostitution of the child, or is sexually abused; or

(d) frequents or is allowed to frequent the company of any prostitute, or of any smuggler,

thief of other criminal; or

(e) has been or is being or is likely to be taken out of India for any immoral purpose or

for any purpose detrimental to his welfare and interests; or

(f) has taken to criminal activities, indulges in drugs or alcoholic abuse; or

(g) in the event of the death of both the adoptive father and mother or of a single parent

who is the sole adopter;

and may, if it is satisfied that the revocation of the adoption is in the best interests

or the child, revoke such adoption.

Explanation: For the purpose of clause(a), cruelty in relation to an adopted child

includes any undue discrimination between him and his brothers or sisters in the

adoptive family in the matter of care, maintenance, training, education, provision of

(152)

money or property or in any matter connected with the physical, emotional or moral

well-being of the child.

2) Where the revocation of an adoption is made under sub-section(1), the Court shall either recommit

the child to the concerned placement agency or declare the child to be a ward of the Court.

3) In the event of the death of both the adoptive mother and father, or of a single parent who is

the sole adopter, the Court shall consider the will, if any, made, or wishes expressed by the parent

or parents and take such measure, including the appointment of a guardian to the child, to ensure

the lawful inheritance of the child.

16. Licensing Authority for institutions-

(1) There shall be a Licensing Authority in each State for licensing institutions as a social welfare

institution under this Act.

(2) The Licensing Authority for a State shall consist of the following members, namely:-

(a) a Chairperson, who shall be member of the State Social Welfare Board, if any, or President

or Secretary of the State Council of Child Welfare, if any, or an officer of the State Government

not below the rank of a Joint Secretary to that Government, to be appointed by the State

Government;

(b) not less than five other members to be appointed by the State Government, from amongst

persons who, in the opinion of the Government, have special knowledge or experience in

regard to matters relating to child welfare and administration of child welfare institutions:

Provided that not less than one-half of the members under this clause shall be women.

(3) The term of office of, the allowances, if any, payable to, and the other terms and conditions of

service of the chairperson and the other members of a Licensing Authority shall be such as may

be determined by the State Government.

(4) The quorum for the meetings of a Licensing Authority and the procedure to be followed by such

authority shall be such as may be determined by it.

(5) No act or proceedings of the Licensing Authority for any State shall be invalid by reason of the

existence of any vacancy in, or defeat in the composition of the Authority.

(6) All members of the Licensing Authority shall be deemed to be public servant within the meaning

of section 21 of the Indian Penal Code.

17. Licensing of institutions.

(1) It shall not be lawful for any body of persons to make any arrangements for the adoption of a

child unless that body is licensed as a social welfare institution under this Act:

(153)

Provided that for a period of three months from the commencement of this Act, this sub section

shall not apply to any body of persons engaged in making such arrangements immediately before

such commencement.

(2) An application for being licensed as a social welfare institution may be made to the licensing

authority in such form and containing such particulars as may be prescribed.

(3) On the receipt of an application under sub-section (2), the licensing authority, after making such

inquiry as it thinks necessary, shall by an order in writing either grant the license or refuse to grant

it.

(4) Where a license is refused, the ground for such refusal shall be communicated to the applicant

in the prescribed manner.

(5) A license, unless sooner revoked, shall be in force for a period of three years from the date of

issue of the license and may, on an application made in this behalf sixty days before the date of

its expiry, be renewed for a like period:

Provided that a licence may be renewed on an application made within sixty days before the date

of expiry of the licence if the licensing authority is satisfied that there was sufficient cause for

not making an application earlier.

(6) Notwithstanding any thing contained in sub-section (5), the licensing authority may, for reasons

to be recorded in writing , grant or renew a licence under this section for a period less than three

years.

(7) Every licence granted under this Act shall be in the prescribed form and shall be subject to the

prescribed conditions.

(8) No fee shall be charged for the grant or renewal of a licence under this Act.

(9) A licence granted under this Act shall not be transferable.

18. Revocation of licence.

(1) The Licensing authority may, without prejudice to any other penalty which may have been incurred

under this Act, for reasons to be recorded in writing, revoke a licence granted under this Act-

(a) if any of the provisions of this Act or any of the rules thereunder relating to the grant of

licences or any of the conditions of the licence are contravened;or

(b) if the licensing authority is not satisfied with the conditions, management or superintendence

of the institution concerned:

Provided that before making an order of revocation, the licensing authority shall give the

holder of the licence a reasonable opportunity to show cause why the licence should not be

revoked.

(154)

(2) Where a licencein respect of an institution has been revoked under sub-section (1), such institution

shall cease to perform any functions under this Act.

(a) where no appeal has been preferred , against the order of revocation, immediately on the

expiry of the period prescribed for the filing of such appeal.

(b) Where an appeal has been preferred but the order of revocation has been confirmed,

whether with or without any modifications, from the date of the appellate order.

(3) On the revocation of a licence in respect of an institution, the licensing authority may direct that

all children who are under the care and custody of the institution on the date of such revocations

hall be-

(a) transferred to another institution or institution; or

(b) placed in the care and custody of such person or persons as is in the opinion of the licensing

authority to be fit enough to be entrusted with the care and custody of children.

19. Appeal against orders of licensing authority

(1) Any person aggrieved by an order of the licensing authority granting or renewing a licence for a

period less than three years or refusing to grant or renew a licence or revoking a licence or by

a direction of the licensing authority may, with such time as may be prescribed, prefer an ppeal

to the State Government against such refusal, revocation or direction.

(2) The order of the State Government on such appeal, and subject only to such order, the order of

the licensing authority shall be final and conclusive.

20. Penalties.

Any person who contravenes any of the provisions of this Act or any of the rules made thereunder

relating to the grant of licence or any of the conditions of a licence, or any of one directions issued under

sub-section(3) of section 18 shall be punishable with imprisonment for a term which may extend to one year,

or with fine, or with both.

21. Prohibition of certain payments.

(1) Subject to the provisions of this section, it shall not be lawful for any person to make or give to

any other person any payment or reward for or in consideration of-

(a) the adoption by that person of a child: or

(b) the grant by that person of any consent required in connection with the adoption of a child;

or

(c) the transfer of that persons of the care and custody of a child with a view to the adoption

of a child; or

(155)

(d) the making by that person of any arrangement for the adoption of a child.

(2) Any person who makes or gives or agrees or offers to make or give any payment or reward

prohibited by this section or who receives or agrees to receive or attempts to obtain any such

payment or reward, shall be punishable with imprisonment for a term which may extend to six

months, or with fine, or with both; and the court may order any child in respect of whom the

offence has been committed, to be removed to a place of safety until he can be restored to his

parents or guardian or until other arrangements can be made for him.

(3) This section does not apply to any payment made to an institution by a parent or guardian of a

child or by a person who adopts or proposes to adopt a child, being any payment in respect of

expenses reasonably incurred by the institution in connection with the adoption of the child or to

any payment or reward authorized by the court to which an application for an adoption order in

respect of a child is made.

22. Restrictions upon advertisements.

(1) Except with the leave of the court competent to entertain an application for an adoption order

in respect of a child, it shall not be lawful for any advertisement to be published indicating-

(a) that the parent or guardian of the child desire to cause the child to be adopted: or

(b) that a person desires to adopt the child; or

(c) that any person (not being an institution) is willing to make arrangements for the adoption

of the child.

(2) Any person who causes to be published or knowingly publishes an advertisement in contravention

of the provisions of this section shall be punishable with imprisonment for a term which may

extend to six months or with fine, or with both.

(3) In any proceeding under this section a report by an Indian consular officer or an Indian diplomatic

officer or a deposition made before an Indian consular officer or an Indian diplomatic officer and

authenticated under the signature of that officer shall be admissible as evidence of the matters

stated therein, and it shall not be necessary to prove the signature or official character of the

person who appears to have signed any such report or deposition.

24. Provisional adoption by person domiciled outside India.

(1) If upon an application made by a person who is not domiciled in India, the District Court is

satisfied that the applicant intends to adopt a child under the law of or within, the country in

which he is domiciled, and for that purpose desires to remove the child from India either immediately

or after an interval, the Court may make an order (in this section referred to as a provisional

adoption order) authorizing the applicant to remove the child for the purpose aforesaid and giving

to the applicant the case and custody of the child pending his adoption as aforesaid;

(156)

Provided that no application shall be entertained unless it is accompanied by a certificate by the

Central Government to the effect that

(i) the applicant is in its opinion a fit person to adopt the child;

(ii) the welfare and interests of the child shall be safeguarded under the law of the country of

domicile of the applicant;

(iii) the applicant has made proper provision by way of deposit or bond or otherwise in accordance

with the rules made under this Act to enable the child to be repatriated to India, should it

become necessary for any reason.

(2) A provisional adoption order may be made under this section in any case where an adoption order

could be made in respect of the child under this Act but shall not be made in any other case.

(3) The provisions of this Act relating to an adoption order shall, as far as may be, apply in relation

to a provisional adoption order made under this section.

25. Power to make rules

(1) The State Government may, by notification in the Official Gazette, and after consultation with the

High Court, make rules for carrying out the purposes of this Act.

(2) In particular and without prejudice to the generality of the provisions of sub-section (1), such rules

may provide for �

(a) the form and the manner in which an application for an adoption order shall be made under

section 5;

(b) the procedure which may be followed in hearing applications by a District Court and the

circumstances in which and the extent to which such applications may be heard and determined

otherwise than in open court under sub-section (1) of section 10;

(c) the quorum for the meeting of a licensing authority and the procedure to be followed by

it.

Under sub-section (4) of section 16;

(d) the form and particulars of an application for a licence in respect of an institution under

sub-section (2) of section 17;

(e) the manner in which the ground for refusal of a licence shall be communicated to the

applicant under sub-section (4) of section 17;

(f) the form of licence in respect of institutions and the conditions thereof referred to in sub-

section (7) of section 17, the qualification of persons who may be engaged by institutions

to make arrangements for adoption, the provisions which should be complied with by institutions

(157)

in regard to reception, care, protection and welfare of children under their control and the

inspection of records and premises of institutions;

(g) the time within which an appeal may be preferred to the State Government under section

19;

(h) the form in which, and the authorities to whom, an application for the certificate referred

to in the proviso to sub-section (1) of section 24 may be made; the provision which an

applicant for such certificate has to make for repatriation to India of the child to which the

application relates and the conditions which such an applicant has to comply with;

(i) any other matter for which provision has to be or may be made by rules.

(3) Every rule made under this Act shall be laid, as soon as may be after it is made, before the

legislature while it is in session, for a total period of thirty days which may be comprised in one

session or in two or more successive sessions, and if, before the expiry of the session immediately

following the session or the successive sessions aforesaid, the House or where there are two

Houses, both Houses agree in making any modification in the rule or the House or both Houses

agree that the rule should not be made, the rule shall thereafter have effect only in such modified

form or be of no effect, as the case may be; however, that any such modification or annulment

shall be without prejudice to the validity of anything previously done under that rule.

(158)

THE CRIMINAL LAWS (AMENDMENT) BILL, 1994

(WITH REFERENCE TO CHILD RAPE)

Introduction

The National Commission for Women organized a Seminar on Child Rape which made a number of

recommendations both legislative and administrative. The legislative recommendations proposed amendments

to the Indian Penal Code, the Code of Criminal Procedure, 1973 and the Indian Evidence Act 1872. These

amendments were examined and a Bill to give effect to the recommendations of the Seminar had been

examined by the Expert Committee on Law and Judiciary appointed by the National Commission and has also

been approved by the National Commission for Women. The Draft Bill as approved by the National Commission

is proposed herewith.

3. The bill, seeks to amend the Indian Penal Code(IPC), the Code of Criminal Procedure, 1973 and the

Indian Evidence Act. The provisions included in the Bill have been briefly explained below:

I. Amendments to the Indian Penal Code (IPC)

(i) The first amendment proposes to include a new section 166 A providing for public servants

disobeying any direction of law. This is because, in many cases, the directions of the Court are

not being implemented by the police and the other public servants.

(ii) Section 354 of the IPC dealing with use of criminal force to outrage the modesty of a woman is

proposed to be amended to provide for a higher punishment if the women whose modesty is

outraged is under 18 years of age. The punishment would extend to a term of seven years. It may

be further mentioned that the Law Commission of India in its 84th Report has suggested a new

section to achieve this object. It is felt that the amendment proposed in the Bill would be sufficient

to achieve the objective in view.

(iii) Section 375 of the IPC dealing with the offence of rape is proposed to be amended to change

the reference to 16 years in paragraph �six�, to 18 years to provide for the increase in the age

of majority to 18 years. A consequent amendment to change the reference to 15 years to 18 years

has also been made in the Exception.

(iv) Section 376 providing for punishment of rape is being amended to provide for the following

objects:

(a) The reference of punishment to 2 years provided for rape by the husband with his own wife

who is more than 12 years of age is proposed to be increased to 2 years from 5 years.

(b) The punishment provided in sub-section (2) of the section is proposed to be increased from

a minimum punishment of 10 years to punishment of rigorous imprisonment for life. At the

same time, the punishment for rape on a women who is less than 12 years of age is

(159)

proposed to be taken out of this sub-section and dealt within a separate section providing

for a higher punishment.

(v) It is proposed to provide for a higher punishment to the offences specified under sections 376 A

to 376 D if they are committed against children.

(vi) A separate offence of Eve-Teasing and the punishment therefore is also proposed to be provided.

II. Amendment of the Code of Criminal Procedure.

Person under 12 years and the woman out raged under sections 354 and 376 of the IPC should be

recorded only by a female police officer or by a person authorized by such organization interested in the

welfare of the women or children and recognized in this behalf by the State Government. Section 167 is

proposed to amended to provide that when the accused person is a woman under 18 years of age, the

detention of such person should be authorized to be in the custody of a remand home or a recognized social

institution,. Section 173 is being amended to provide that in respect of the offences under section 376 of the

IPC, the investigation should be completed within three months from the date on which the information

relating to the case of offence was first received by officer in charge of the Police Station. Sub-section (2) of

the section has been amended to include that the investigation under sections relating to rape should include

the report of the medical examination of the victim. This has also been provided by means of an amendment

to section 309 that in an enquiry or trial relating to offences under Section 376 to 376 E of the IPC, judgment

shall be delivered with a period of 2 months from the date of commencement of the examination of the

witnesses. Section 327 of the Act provides for the investigation to be conducted in camera. It has been

provided that the names and addresses of the parties in a proceeding for rape should not be indicated in

newspapers or other media reporting the cases.

III. Amendment of the Indian Evidence Act.

Sections 114 B and 155 of the Indian Evidence Act 1872 are proposed to be amended to include certain

presumptions regarding the commission of sexual intercourse and for prosecution for rape or in an attempt

to commit rape.

(160)

THE CRIMINAL LAWS (AMENDMENT) ORDINANCE, 1994

{As approved by the Expert Committee on Laws in its meeting held on 18th, 19th and

24th August and 8th September1994}

A Bill

Part I

Preliminary

AN ORDINANCE

Further to amend the Indian Penal Code, the Code of Criminal Procedure, 1973 and the Indian Evidence Act,

1872, and the Representation of the People Act, 1951.

(a) for the Explanation the following Explanation shall be substituted; namely:-

�EXPLANATION- Mere penetration, without any further evidence of the offence, is sufficient to constitute

the carnal intercourse necessary to the offence described in the section.�

1. Amendment of section 509

In section 509 of the Indian Penal Code, for the words � shall be punished with simple imprisonment

for a term which may extend to one year� the words shall be punished with rigorous imprisonment for a term

which may extend to seven years� shall be substituted.

PART III

Amendment to the Code of Criminal Procedure 1973.

2. Insertion of new section 25 A- After section 25 of the Code of Criminal Procedure, 1973, (2 of 1974)

(hereafter in this Part referred to as the Code ), the following section shall be inserted, namely:

�25A- Appointment of Woman Public Prosecutors

The Central Government or the State Government, while appointing Public Prosecutors and Assistant

Public Prosecutors under section 24 and 25, shall as far as practicable, appoint women to be Public

Prosecutors, Additional Public Prosecutors and Assistant Public Prosecutors specifically for the conduct

in any court, any prosecution, appeal or other proceeding on behalf of the Central Government or State

Government as the case may be, in cases falling under section 354, 376, 376A to 376F of the Indian

Penal Code.�

3. Amendment of section 26:

To clause (a) of section 26 of the Code, the following proviso shall be added, namely:-

�Provided that an offence under sections 376 to 376F of the Indian Penal Code shall, as far as

practicable, be tried only by any such Court presided over by a woman.�

(161)

4. Amendment to section 54:

In section 54 of the Code, the following proviso shall be inserted at the end, namely:-

�Provided that where the arrested person is a female, the examination of the body of such person shall,

as far as practicable, be done by a female registered medical practitioner.�


(a) in sub-section (1) of section 157 of the code, after the proviso, the following proviso shall be

inserted, namely:-

�Provided further that in relation to an offence of rape, the investigation under this sub-section

shall, as far as practicable, be conducted only by a woman police officer and the person to whom

such offence is alleged to have been committed is a woman who is under twelve years of age,

she shall be questioned only at her residence in the presence of her parents and the questioning

should be as brief as possible�.

(b) in sub-section (2), for the words �the proviso�, the words �the first proviso� be substituted.

6. Amendment of section 160

In section 160 of the Code, after sub-section (2), the following sub-sections shall be inserted, namely:-

�(3) Where under the Chapter, he statement of a person under the age of twelve years is to be

recorded either as first information of an offence or in the course of investigation into an offence,

and the women is a person against whom any of the offences under section 354, 376, 376A to

376F of the Indian Penal Code is alleged to have been committed or attempted, the statement

shall be recorded either by a female police officer or by a person authorized by such organization

interested in the welfare of women or children and recognized in this behalf by the State Government

by notification in the Official Gazette.

(4) Where the case is one to which the provisions of sub-section (3) apply and a female police officer

is not available, the officer incharge of the police station shall, in order to facilitate the recording

of the statement, forward to the person referred to in that sub-section, a written request setting

out the points on which information is required to be elicited from the woman.

2. The person to whom such a written request is forwarded shall, after recording the statement of

the women, transmit the record to the officer incharge of the police station.

3. Where the statement recorded by such person as forwarded under sub-section (5), appears in any

respect, to require clarification or amplification, the officer incharge of the police station shall

return the papers to the person by whom it was forwarded, with a request for clarification or

amplification, on specified matters and such person shall there upon record the further statement

(162)

of the woman in conformity with the request and return the papers to the officer incharge of the

police station.

4. The statement of the woman recorded and forwarded under sub-sections(3) to (6) shall, for the

purpose of the law relating to the admissibility in evidence of the statement made by any person,

be deemed to be a statement recorded by a police officer.�


In sub-section (2) of section 167 of the Code, for the words �Provided that� the following shall be

substituted, namely:-

�Provided that where the accused person is a woman who is under eighteen years of age, the detention

of such accused shall be authorized to be in the custody of a remand home or social welfare institution

recognized in this behalf by the State Government by notification in the official Gazette.


(a) in sub-section (1) In section 173 of the Code, the following shall be added at the end namely:-

�and where the offence is under sections 376 or 376A to 376F of the Indian Penal Code, it shall

be completed within three months from the date on which the information relating to the commission

of offence was first received by the officer-incharge of the police station.�

(b) in sub-section (2), in clause (i), after sub-clause(g), the following clause shall be inserted, namely:-

�(h) where the investigation relates to an offence under sections 376, 376A to 376F of the Indian

Penal Code, whether the report of the medical examination of the woman concerned has been

attached.�


In sub-section (1) of section 309 of the Code, the following proviso shall be added, namely:-

�Provided that where the inquiry or trial relates to an offence under section 376 to 376F of the Indian

Penal Code, judgement shall be delivered with a period of two months from the date of commencement of

the examination of witnesses.�


In section 327 of the Code, for sub-section (3), the following sub-sections shall be substituted, namely:-

�(3) Where any proceedings are held under sub-section (2), it shall be lawful for any person to print

or publish any matter in relation to any such proceedings with the previous permission of the Court, but names

and addresses of the parties to such proceedings shall not, in any case, be included in such matter.

(163)

Amendment of the First-schedule

In the First Schedule to the Code-

(a) after the entries relating to section 354, by following shall be inserted, namely:-

Assault or use of Criminal force to a Woman who is under eighteen years of age(2)

Imprisonment(3)

Non bailable(5)

(b) after the entries relating to section 376D, the following entries shall be

inserted, namely:-

�376E Inter course under section 376A to 376D with a woman who is under eighteen years of age

(2)

Imprisonment for 10 years & fine (3)

Non-bailable (5)

376F Acts connected with rape (2)

Imprisonment of 7 years and fine(3)

(c) in the entries relating to section 377, in the entry in column 2, the words and figures � or

imprisonment for 10 years,� shall be omitted.

PART-IV

Amendments of the Indian Evidence Act, 1872 (1 of 1872)

17. Insertion of new section 114B.

In Chapter VII of the Indian Evidence Act, 1872,1872, after section 114A, the following section shall

be inserted, namely:-

�114B.-Presumption as to the commission of sexual intercourse �

In a prosecution for the offence of rape, where the question is whether sexual intercourse had been

committed and the woman or child alleged to have been raped described the act of sexual intercourse in such

a manner that the sexual intercourse had been committed, the Court trying the offence shall presume that

sexual intercourse had in fact been committed.�

18. Amendment of Section 155

In section 155 of the Indian Evidence Act, 1872, for clause (4), the following clause shall be substituted,

namely:-

(164)

�(4) Where a person is prosecuted for rape, or an attempt to rape, and the question of consent is not

an issue, it may be shown that the prosecutrix had previous sexual experience with him�

PART-V

Amendment of Representation of the People Act, 1951.

3. Amendment of Section 8.

In section 8 of the Representation of the People Act, 1951, in sub-section (2), after the second-proviso,

the following proviso shall be inserted, namely:-

�Provided also that a person convicted of an offence under section 376F of the Indian Penal Code shall

be disqualified from the date of such conviction and shall continue to be disqualified for a further period of

five years since his release.

(165)

THE PREVENTION OF BARBAROUS AND BEASTLY CRUELTY AGAINSTWOMEN BILL 1995

The Department of WCD Ministry of Human Resource Development, Government of India has referred

a Private Member Bill on the above subject for the commission comments the Commission commented as

follows:

● A very lengthy long title is given in the Bill. This more or less reproduces the definition of the expression

�Barbarous and Beastly Cruelty Against Women� as contained in the Bill. In view of this, it is not

necessary to include all that is contained in the definition in the long title.

● The extent clause under clause 1 (2) extends the provision of the act applicable to the whole of India.

The subject mater of the Bill will be relatable to entry 1 of the Concurrent List of the Constitution which

deals with Criminal Procedure. This entry is not applicable to State of Jammu & Kashmir. The extent

clause should, therefore, exclude the State of Jammu & Kashmir.

● As the Bill provides for constitution of Special Courts for trying offences under the Act. Some previous

action is required to be taken before the Bill is brought into force. In view of this, a commencement

provision is required to be included in the Bill providing for commencement by notification. In the

definition of � appropriate Government�, it should be provided that in respect of the Union territories

it will be the administrator who will perform the functions of the State Government and not the Central

Government. The definition �barbarous and beastly cruelty� is an inclusive definition and at the same

time it provides to give exhaustive instances of cruelty. If the Burning of the body in tandoor may be

an instance relatable to Sharma�s case, this need not specifically be included as there may be many

other cases of disposal of body.

● The definition of �woman� makes it applicable to all woman human being of any age, But the main

definition deals with rape in all the instances. Hence, reading this definition with the definition of

�barbarous and beastly cruelty� in rape case it would only relate to women of those ages specified in

the definition of rape under section 376 of Indian Penal Code, and not include women of all ages. The

expression �rape� has a certain connotation.

Section 3 provides for the punishment of death only for a person committing barbarous and beastly

cruelty against women. Although there may cannot be any two opinions on the capital punishment being

provided for committing offences against women, it may not be order to provide the capital punishment as

the only punishment. There may be so many circumstances in which the capital punishment may not be

justified. It may not also be possible to prove beyond reasonable doubt �barbarous and deadly acts� committed

under this Act and the Court in many cases of minor intensity will be left with no discretion to award any lesser

punishment. In this view of the matter alone, this clause would not be beyond the risk of challenge as affecting

article 14 of the Constitution. Even where minimum punishments are provided a clause is always included that

the Court should invariably record its reasons before awarding any punishment less than the minimum specified

(166)

in the section to save the sections from the risk of challenge. It is, therefore, suggested that some the

punishments may be provided or if the intention is to provide a minimum punishment, discretion may be given

to the Court in specific cases or for reasons to be recorded in writing to inflict a lesser punishment.

It is proposed to provide for the constitution of Special Courts to try the offences under the act. But

in the Bill it has been provided that the Chief Justice of the High Court of a State will be consulted for of

constitution of Special Courts in other areas. This will not work in practice as some of the High Courts have

jurisdiction for more than one State and for the Union territory of Delhi the Chief Justice of Delhi High Court

maybe made the consulting authority for the constitution of Special Courts in the National Capital Region.

It is necessary that the composition of the Special Courts should be indicated in the law itself and not

left to the rules to be specified by the Government.

It is necessary to provide for the adoption of a specific procedure either on the lines of the Cr. P.C. or

power should be given to Special Courts to adopt its own procedure for the trial of offences under the act.

Unless this provided for the law cannot work.

Provision regarding removal of difficulties as contained in clause 8 of the Bill would amount of excessive

delegation of legislative powers by virtue of the decision in Jalan Trading Company unless the period within

which the �removal of difficulties� order can be issued is indicated in the Bill itself. This only empowers the

Central Government to make rules to carryout the provisions of the Act. Insofar as the administration of the

Act is proposed to be retained with the State Government is necessary that power to make rules is given to

the State Governments also. The usual formula for laying the rules before Parliament or the State Legislature

may also be made.

In addition section 351, 376, 498A and 509 of the I.P.C. deal with almost all the instances to be covered

in the Bill except that punishments may be less severe. The object could therefore be achieved amending the

I.P.C. to provide for severe penalties.

As Introduced in the Rajya Sabha on 11th Dec. 1995 Bill No. LXV of 1995

The Prevention of Barbarous and BeastlyCruelty Against Women Bill 1995

A bill to prevent the barbarous and beastly cruelty against women such as battering an falling by

strangulating or by any other means after committing rape on here, hopping the body into pieces or burning

the body in �tandoor� or by �sprinkling� petrol, kerosene or by other inflammable object after committing gang

rape or raping a pregnant woman resulting in her death or miscarriage or burning alive any women by

providing deterrent punishment of capital incidental thereto.

Be it enacted by Parliament in the Forty sixth Year of the Republic of India are follows:-

1. (1) This Act may be called the Prevention of Barbarous and Beastly Cruelty Against Women act,

1995.


(167)

(3) It shall come into force at once.

2. In this Act, unless the context otherwise requires:-

(a) appropriate Government means in the case of State Government of that State and in other cases

the Central Government:

(b) barbarous and beastly cruelty included

(i) killing a woman by battering, strangulating or by any other means after committing rape

on her;

(ii) after killing a woman, disposing off her body by chopping her body into pieces or by burning

her body in a tandoor or other places or by burning her body by sprinkling petrol, kerosene

or such other inflammable object or by any other means;

(iii) burning a woman alive leading to her death;

(iv) killing a woman by way of gang rape and

(v) committing rape on a pregnant woman resulting in her death or miscarriage;

(c) prescribed means prescribed by rule made under this Act;

(d) �Special Court� means a Special Court constituted under section 4;

(e) Women means a female human being of any age.

3. Any person who commits barbarous and beastly cruelty against woman shall be punished with death.

4. (i) The appropriate Government shall, in consultation with the Chief Justice of the High Court in the

case of a State, and Chief Justice of India in other cases, by notification in the Official Gazette,

constitute such number of Special Courts as it may deem necessary for the purpose of the Act.

(ii) The set up of a Special Court established under sub-section (i) shall be such as may be prescribed.

5. Notwithstanding, anything contained in the Code of Criminal Procedure, 1970 of any other law for the

time being in force, every offence punishable under this Act shall be triable only by the Special Court

constituted for trying such offence under section 4.

6. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 an offence committed

under this Act shall be cognizable and non-bailable.

7. Notwithstanding anything contained or any other law for the time being in force no court other than

the Supreme Court or the High Court shall have the authority to grant anticipatory bail to any person

accused of committing an offence under his Act.

8. If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by

order, not inconsistent with the provisions of this Act, remove the difficulty.

(168)

9. The provisions of the this Act shall have effect not withstanding anything inconsistent therewith contained

in any other law for the time being in force but, save as aforesaid, the provisions of the Act shall be

in addition to and not in derogation of any other law for the time being in force relating to cruelty

against women.

10. The Central Government may, by notification in the Official Gazette, make rules for carrying out the

purposes of this Act.

STATEMENT OF OBJECTS AND REASONS

Women are the most vulnerable part of our Society. They have been subjected to various kinds of

atrocities since time immemorial. In past when the civilization had not developed woman was treated as an

object and exploited to the maximum. When a Ring used to invade another kingdom the first target used to

be women. However with the progress of civilization this vulnerable part of the society has got some respect

but till inhuman atrocities continue to be committed on her. She is still not safe in the society. Sex naniacs

and persons with perverted mentality always remain in search of an opportunity to pounce on her for sexual

abuse. Beastly crime of rape does not stop there. In many cases after raping the hapless woman she is finished

ruthlessly. She is either battered to death or strangulated. Sometimes as if the killing is not enough, her body

is chopped off into pieces and dumped into a gunny bag and thrown in near by nullah or jungle. The sex

maniac beasts many a time commit this horrible crime on innocent girls of the age of some weeks or years.

Many a times gang rape is committed on a woman an to wipe out the evidence she is killed and every effort

is made to dispose off her body.

However this barbarous and beastly cruelty was visible in its ugliest form recently when a woman was

killed by her own husband who also attempted to destroy her body in a �Tandoor� of a celebrated hotel in

the heart of the national capital. This inhuman Act rocked the entire nation.

Similarly barbarous atrocities are committed on woman when a pregnant woman is raped resulting in

her death or miscarriage. Unfortunately these atrocities on women are committed with full knowledge and

many a time to take revenge either with her or with some of her family members.

These barbarous and beastly cruelties against women will have to be prevented with a heavy hand by

providing capital punishment for such beastly acts. Such offences should be tried by Special Courts and they

should be declared cognizable and non-bailable. It is hoped that deterrent punishment for such crimes will

certainly reduce the number of such crimes against women and girl who are not safe anywhere in the world.

This Bill seeks to achieve the above objects.

FINANACIAL MEMORANDUM

Clause 4 of the Bill provides for establishment of Special Court for trying the offence committed under

this Act. The Bill, if enacted and brought into force will involve expenditure from the Consolidated fund of

India. It is estimated that a sum of rupees ten crores may involve as recurring expenditure per annum.

It is also estimated that sum of rupees two crores may involve as non-recurring expenditure.

(169)

MEMORANDUM REGARDING DELEGATED LEGISLATION

Clause 10 of the Bill given power to the Central Government to make rules for carrying out the purposes

of this Bill. The rules will relate to matters of details only.

The delegation of legislative power is of normal character.

RAJYA SABHA

A BILL

A bill to prevent the barbarous and beastly cruelty against women such as battering or killing strangulating

or by any other means committing rape on her chopping the body into pieces or burning the body in Tandoor,

or by sprinkling petrol, kerosene or by other inflammable object after committing gang rape or raping a

pregnant women resulting in her death or miscarriage or burning alive any women by providing deterrent

punishment of capital punishment and for matters connected therewith and incidental thereto.

(170)

ENACTMENT OF DELHI PROHIBITION OF EVE-TEASING BILL

The Department of Women and Child Development referred to the Commission a proposal for enactment

of the Delhi Prohibition of Eve-teasing Bill, 1992 received from the Ministry of Home Affairs. The Commission

observed that a Bill on the subject was earlier introduced and passed by the Rajya Sabha in 1988. When it

was pending in the Lok Sabha, the dissolution of Lok Sabha took place and the Bill lapsed. The proposal

referred to the Commission in 1992, contained the Delhi Eve-teasing Bill of 1984 (which had been passed by

the Delhi Metropolitan Council for adoption by Parliament).

After examining the proposal, the Commission felt that the lapsed Bill was better drafted document than

the Bill of 1984. The Commission also made the following suggestions with regard to the provisions of the

proposed Delhi Prohibition of Eve-teasing Bill:-

(i) Short and the enacting formula have to be suitably amended as the proposed Bill is being brought

forward in 1993. Some of the voluntary organizations who were consulted suggested that the expression

�Eve-teasing� should be replaced by a more appropriate expression suitable for the Indian context.

(ii) In view of the nature of the offence contemplated in the proposed Bill, the definition of �man� as

suggested in clause 2(b) of the proposed legislation may not be necessary.

(iii) Clause 3 of the proposed legislation defining �Eve-teasing� appears to be only an amalgam of the

provisions of sections 294 and 509 OF the IPC. The new legislation does not make any improvement

but on the contrary appears to have diluted the punishment for the offence (vide clause 4 of the Bill).

(171)

THE SEXUAL HARASSMENT OF WOMEN AT THE WORKPLACE (PREVENTIONAND REDRESSAL) BILL, 2004

A Bill to provide for the prevention and redressal of sexual harassment of women at workplaces, or

arising during or out of the course of their employment and matters connected thereto, in keeping with the

principles of equality, freedom, life and liberty as enshrined in the Constitution of India and in pursuance of

the Convention signed �for the elimination of all forms of discrimination against women.

CHAPTER I

PRELIMINARY

1. (1) This Act may be called the Sexual Harassment of Women at the Workplace (Prevention and

Redressal) Act, 2004.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force with immediate effect.

2. In this Act, unless the context otherwise requires, -

(a) �aggrieved woman� means any female person, whether major or minor and includes a woman

employed or working or studying, who has been subjected to sexual harassment;

(b) �appropriate Government� means,-

(i) in relation to any department of the Central Government or any establishment or undertaking

wholly or substantially financed by that Government, or such other bodies or corporations

established by or under the control of the Central Government, the Central Government; and

(ii) in relation to any department of a State Government or any establishment or undertaking

wholly or substantially financed by that Government, or any local authority, or any establishment

or undertaking established by or under the control of the State Government, the State

Government;

(c) �complainant� means,-

(i) an aggrieved woman herself;

(ii) an aggrieved woman for herself and on behalf of others, in the case of more than one

aggrieved woman;

(iii) the legal heir or representative, in the case of death of an aggrieved woman; or

(iv) a registered trade union or a women�s organisation or a non-governmental organisation, on

behalf of aggrieved woman or women referred to in sub-clause (i) or sub-clause (ii) or sub-

clause (iii), who files a complaint of sexual harassment under this Act;

(172)

(d) �Complaints Committee� includes the Internal Complaints Committee constituted under section 5;

(e) �defendant� means a person against whom a complaint is filed by a complainant;

(f) �District Special Officer� or �Special Officer� means a person appointed under section 6 or

section 7, as the case may be;

(g) �educational institution� means a university, college, school, private coaching centre or any other

institution at which education or training is provided;

(h) �employee� means a person employed for any work directly, or by or through any agency (including

a contractor), with or without the knowledge of the principal employer, whether for remuneration

or not, or working on a voluntary basis, whether the terms of employment are express or implied,

and includes any person employed as a temporary, casual, badli, probationer, trainee, apprentice

or by whatever name called, and a domestic servant employed in a house or dwelling place or any

other establishment;

(i) �employer� means,-

(a) in relation to a department of the Central Government or a State Government, the authority

prescribed in this behalf, or where no authority is prescribed, the head of the department;

(b) in relation to an establishment or undertaking wholly or substantially by the Central Government

or the State Government or any local authority of a State Government, as the case may be,

the authority prescribed in this behalf, or, where no person is so prescribed, the Chief

Executive Officer;

(c) in a workplace not covered under sub-clauses (a) and (b), the person who, or the authority

which, whether called a manager, managing director, managing agent, mukadam, or by

whatever name called, is responsible for the supervision and control of the workplace or

house, in which the employee is employed, and in respect of a contract employee includes

the principal employer of the workplace in which the employee is working, as well as the

contractor;

(d) in any other case, the person who is in a position of authority whether evaluatory, pecuniary

or fiduciary including the owner or trustee of an educational institution.

(j) �Internal Complaints Committee� means a committee constituted by the employer under section

4;

(k) �Local Complaints Committee� means a Committee constituted under section 9;

(l) �owner�, in relation to an educational institution, means the person who establishes an educational

institution, or a trustee or the person who is responsible to manage it as a principal, manager or

by whatever name called;

(173)

(m) �panel of experts� means the list of experts prepared and maintained by the District Special

Officer under section 8;

(n) �proceedings� means any proceedings carried out by any authority prescribed or persons authorised

under this Act;

(o) �sexual harassment� means any unwelcome sexually determined conduct whether physical, verbal

or non-verbal, including but not limited to, sexual advances, demands or requests for sexual

favours, molestation, sexually nuanced gestures, comments, remarks or jokes either verbal, textual,

graphic or electronic;

(p) �workplace�, in relation to an employee, means any place where an aggrieved woman or defendant

is employed or works, or visits in connection with work during the course of or arising out of

employment, including, but not limited to the following, namely:-

(i) a factory, mine, plantation or forest;

(ii) a place where any agricultural operation is carried out;

(iii) a place of sale of agricultural or other products;

(iv) a brick kiln or a construction site;

(v) a shop, business establishment, a corporation or a private office;

(vi) an office or establishments of a professional or consultants;

(vii) an industrial establishment;

(viii) a banking or financial institution;

(ix) a restaurant, club, hotel, resort or other hospitality establishment;

(x) a hospital, nursing home or a health centre;

(xi) a court premise, police station, remand home or any judicial or quasi - judicial establishment;

(xii) an establishment wherein a person is employed for exhibition or performance of sporting or

any other form of entertainment or preparation thereof;

(xiii) a house, dwelling place whether permanent, temporary or in transit;

(xiv) any government, semi-government, establishment or department including telegraph office,

post office, telephone exchange, railways, statutory board or any governmental scheme

instituted for profit or otherwise;

(xvi) a free trade zone or special economic zone;

(xvii) a non-governmental organisation, a public or charitable trust a religious body, trust or

institutions, a co-operative housing society or an association;

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(xviii) a street;

(xix) any form of transportation whether by road, sea or air;

(xx) any other public place.

CHAPTER II

SEXUAL HARASSMENT OF WOMEN

3. (1) No employer, supervisor or co-employee shall, in any manner whatsoever, sexually harass a female,-

(a) employee at the workplace where she is working;

(b) who, for whatsoever reason, is present in or at the workplace; or

(c) who, comes into contact with the employer, supervisor or employee in connection with her

work or with the work of these persons.

(2) No owner or employee, including the teaching staff, of an educational institution, shall in any

manner whatsoever, sexually harass a woman student who attends class or training or visits the

educational institution.

(3) Notwithstanding anything contained in any other law for the time being in force, sexual harassment

shall,-

(i) amount to misconduct in any employment and the service rules or regulations relating to

conduct and discipline at the workplace or educational institution and such rules or regulations

shall include provision for prohibiting sexual harassment and provide for appropriate penalties

against an offender;

(ii) amount to an unfair labour practice within the meaning of clause (ra) of section 2 of the

Industrial Disputes Act, 1947. ?

CHAPTER III

COMPLAINTS COMMITTEES

4. (1) Every employer who employs or has employed fifty or more employees or every owner who

registers or has registered fifty or more students in the preceding twelve months in a calendar year

shall constitute an Internal Complaints Committee:

Provided that an employer or owner who employs or has employed less than fifty employees or

registers or has registered students in any preceding twelve months in a calendar year may

constitute an Internal Complaints Committee:

Provided further that the employer who has more than one office or branch office or the owner

who has more than one educational institution or branch thereof shall constitute an Internal

Complaints Committee in each of them:

(175)

Provided also that where an employer or owner has at any time constituted an Internal Complaints

Committee under this section, such a Committee shall continue to exist notwithstanding that the

number of employees or students at any time thereafter falls below fifty.

5. (1) An Internal Complaints Committee shall consist of a woman President and not less than one half

of its members should be women:

Provided that an Complaints Committee shall nominate a representative of a non-gvernmental

organisation or any other body which is working for the cause of upliftment of women and is

familiar with the issue of sexual harassment.

(2) Not less than one half of the members of the Internal Complaints Committee shall be women:

Provided that where it is not possible to constitute an Internal Complaints Committee with the one

half of women members due to non-availability of suitable women, the Committee shall be constituted

with as many women members as near to one half of the total membership, after recording

reasons therefor.

(3) It shall be the duty of an Internal Complaints Committee to make preliminary investigations into

a complaint made to it by a complainant, hold enquiries into such complaints, to resolve the

matter by amicable settlement, if so requested by the complainant, and to issue orders pursuant

to the findings of the enquiry.

6. (1) Every employer and owner shall designate a female employee to be a Special officer in every

department or educational institution or branch or office of such department or educational

institutions under his or its control to receive complaints under this Act.

(2) Every employer or owner shall endeavour to publicise widely the name or designation and duties

of the Special Officer in every department or educational institution under his or its control.

7. (1) The appropriate Government shall appoint a District Special Officer for every district, as may be

prescribed, to deal with complaints arising out of provisions of this Act.

(2) The District Special Officer, referred to in sub-section (1), shall be of the rank not lower than the

Assistant Labour Commissioner and shall have his or her office in the office of the Labour

Commissioner.

(3) The District Special Officer shall be a female, wherever a female officer in the rank specified in

sub-section (2) is available.

(4) It shall be the duty of the District Special Officer to-

(a) receive complaints from the district concerned;

(176)

(b) prepare and maintain a panel the of experts;

(c) constitute a Local Complaints Committee; and

(d) forward a copy of an Order passed by the Local Complaints Committee to the complainant,

defendant and employer or owner for compliance and carry out any other functions assigned

to her or him under this Act.

8. Every District Special Officer shall prepare and maintain a panel of Group of Experts consisting of

eminent persons from various fields who are generally involved with women�s issues, women�s rights

activists, social workers, counsellors, lawyers, doctors, psychiatrists, trade unionists, journalists etc as

enumerated in section 2 (1) (j) at each District.

9. (1) When a complaint is received by a District Special Officer, the District Special Officer shall

constitute a Local Complaints Committee consisting of not less than three persons from the panel

of experts:

Provided that not less than one half of its members shall be women:

Provided further that in case of non-availability of a suitable woman, such Committee shall be

constituted without one half of the women members after recording reasons in writing threfor.

(2) The Local Complaint Committee shall be headed by a woman, who shall be its chairperson.

CHAPTER IV

PROCEDURE FOR LODGING A COMPLAINT

10. (1) Where an Internal Complaints Committee has been set up in a workplace or an educational

institution, a complaint under this Act may be lodged with any member of the Internal Complaints

Committee:

Provided that if a complaint is made to the employer it shall be forwarded to the Internal

Complaints Committee:

Provided further that in case where a complaint of sexual harassment is against the employer or

owner, the aggrieved woman shall make the complaint to the Special Officer or to any member

of the Internal Complaints Committee.

(2) If the aggrieved woman complaints that she has been subject to an act of sexual harassment at

another branch or office to which she has been deputed or to which she has visited in connection

with her work or studies, a complaint in this regard shall be made either to the Internal Complaints

Committee relating to her regular branch or office or to the Internal Complaints Committee

relating to the branch office where the act of sexual harassment has allegedly taken place.

(177)

11. (1) Save and except for the cases specified in section 12, a complaint under this Act may be made

to the District Special Officer.

(2) When a Complaint is made to the Special Officer, he or she shall constitute the Local Complaints

Committee from the panel of experts within fifteen days of the said complaint and designate a

female member as its chairperson.

(3) The Local Complaint Committee shall operate from the local proximity of the complainant�s

workplace or educational institution.

12. Where an oral cmplaint is made to the employer or owner, or Internal Complaints Committee or any of

its members, or the Special Officer, it shall be duty of the employer or owner , or the Internal Complaints

Committee or its member, or the Special Officer, as the case may be, to reduce the said complaint in

writing and read out the complaint to the complainant and obtain the signature thereon of the complainant.

13. (1) A complaint made under section 10 or section 11 by a complainant referred to in sub-clause (iii)

or sub-clause (iv) of clause (c) of section 2 shall be made only after obtaining a written consent

of the aggrieved woman or, in the case of her death, her heirs or legal representative, authorising

the organisation or individual to file the complaint on her or their behalf.

(2) The consent given under sub-section (1) may be withdrawn at any stage of the proceedings by the

aggrieved woman or her legal heir or representative, as the case may be.

14. (1) Without prejudice to any proceedings initiated or any action taken under this Act, where the

conduct of a sexual harassment amounts to an offence under the provisions of the Indian Penal

Code or any other law for the time being in force, it shall be the duty, of the employer or owner,

or the Internal Complaints Committee or its member, or the Special Officer, as the case may be,

who receives such a complaint, to immediately inform the complainant of her right to initiate

action in accordance with law before the appropriate authority.

(2) Notwithstanding that whether the complainant opts to initiate any criminal proceedings under the

provisions of the Indian Penal Code or any other law for the time being in force, the employer or

owner, or the Internal Complaints Committee or any of its members, or the Special Officer, as the

case may be, shall be bound to initiate proceedings as provided by or under this Act.

15. All the complaints made under this Chapter shall be confidential and it shall be the duty of the members

of the Internal Complaints Committee or the Special Officer to ensure that its confidentiality is maintained

for ever.

(178)

CHAPTER V

PROCEDURES BEFORE THE COMPLAINTS COMMITTEE

16. (1) On receiving a complaint of sexual harassment, the Internal Complaints Committee shall conduct

an inquiry into the complaint by interviewing the complainant and defendant and any witnesses,

determining if there are individuals with direct or indirect information regarding the complaint,

and, if so, by interviewing them or by obtaining information from such other persons and making

such inquiries as it thinks fit.

(2) The Internal Complaints Committee shall complete its inquiry within ninety days from the date of

the complaint, record in writing its findings and take appropriate action on the basis of the

findings.

(3) During the course of enquiry, the complainant and the defendant shall be called separately to

ensure freedom of expression and an atmosphere free of intimidation:

Provided that the complainant shall be entitled to accompany one representative during the

enquiry.

(4) An Internal Complaints Committee shall be free to adopt its own procedure for carrying out the

inquiry having regard to the sensitive nature of the complaint and the respective power position

of the parties.

17. (1) The Internal Complaints Committee shall, for the purposes of an enquiry under this Chapter, have

the power to summon witnesses or call for documents or any information.

(2) If it has reason to believe that a person is capable of furnishing such documents or information,

it may direct that person to produce the documents or information by serving notice in writing on

that person, summoning the person or calling for documents or information at such place and

within such time as may be specified in the notice.

(3) Where an information is recorded or stored by means of a mechanical, electronic or other device,

to produce the same or to produce a clear reproduction in writing of the information.

(4) Where the documents or information are produced before the Internal Complaints Committee in

accordance with this section, the Committee may-

(i) take possession of the documents and make copies or take extracts therefrom;

(ii) retain the possession of the documents for such period as may be deemed necessary for

the enquiry.

18. The Internal Complaints Committee shall have the power to issue appropriate interim orders directing

the employer or owner, on the demand of either the complainant or any witness giving evidence in her

(179)

support, to implement such measures as transferring, changing shift of either the complainant, witness

or defendant to protect the complainant or witnesses against victimisation or discrimination or may

issues such other interim orders as may be deemed necessary to ensure the safety of the complainant

or supporter or witness.

19. The complainant and the defendant shall have the right to receive copies of the proceedings, documents

or any other evidence produced during the course of enquiry.

CHAPTER VI

FINDINGS AND DIRECTIONS

20. (1) On the completion of an enquiry by an Internal Complaints Committee or a Local Complaints

Committee, it may by a reasoned order, �

(a) dismiss the complaint which was the subject-matter of the inquiry; or

(b) pass any one or more of the following directions, namely:-

(i) that the defendant shall not repeat or continue such unlawful conduct; or

(ii) that the defendant shall perform any reasonable act or course of conduct to redress

any loss or damage suffered by the complainant; or

(iii) that the defendant shall pay to the aggrieved woman or her legal heirs damages by

way of compensation for any loss or damage suffered by her or her legal heirs by

reason of the conduct of the defendant; or

(iv) that the defendant shall give a written apology to the aggrieved woman clearly undertaking

that such behaviour will not be repeated and that no retaliatory steps will be taken

by him or on his behalf; or

(v) that a punishment in addition to above be imposed upon the defendant, where the

defendant is an employee, by the employer or owner, according to the gravity of the

act of which he has been found guilty and in accordance with the service rules or

standing orders applicable to the workplace or the educational institution:

Provided that where there is no service rules or standing orders, the Committee may

direct that, any of the following punishments, having regard to the gravity of the act

of which he has been found guilty, be imposed on the defendant- minor penalties:

(a) give him a warning or censure in writing;

(b) fine him, subject to and in accordance with the provisions of the Payment of

Wages Act, 1936;

(180)

(c) withhold an increment for a period not exceeding one year;

(d) suspend him for a period not exceeding four days, major penalties;

(e) withhold an increment for more than a year;

(f) reduce his rank or grade;

(g) terminate his services, by discharging or dismissing him, after paying any dues

to which he is entitled to in law:

Provided further that before any action is taken under this clause, the defendant

shall be given an opportunity to show cause as to why the proposed action

should not be taken against him.

Explanation.- For the purpose of this sub-section, �damage� shall include the

injury to the feelings of the aggrieved woman or the humiliation suffered by her.

(2) Where the defendant is the employer or owner, or is a co-employee involved in the sexual harassment,

or a complaint, led to or resulted in any adverse change to the service conditions of the aggrieved

woman or any witness or representative, or any prejudice being caused to the victim or any witness

in terms of their service conditions and employment, the concerned Committee may, in addition

to any of the above directions, direct that,-

(a) the employer restore the particular service condition of the aggrieved woman or witness or

representative, with retrospective effect and full benefits from the date it was adversely

changed, including where the aggrieved woman or witness of sexual harassment has been

terminated from service, to reinstate her or him with full back wages and continuity of

services;

(b) the employer grant to the aggrieved woman or witness the particular service condition to

which she or he would have been entitled but for the act of sexual harassment or consequences

of the same, with retrospective effect and full benefits from the date the said service

condition would have been granted to her or him but for the act of sexual harassment or

consequences of the same.

(3) The findings and dirctions of the Internal Complaints Committee or the Local Complaints Committee

shall be binding on the employer or the owner.

22. (1) Where the order has been passed by an Internal Complaints Committee, the said Committee shall

forward a copy of the order each to the complainant, defendant and the employer or owner.

(2) Where the order has been passed by a Local Complaints Committee, it shall submit its order to

the concerned Special Officer, who shall forward a copy of the same to the complainant, defendant

and the employer or owner.

(181)

CHAPTER VII

DUTIES AND LIABILITIES OF AN EMPLOYER

23. (1) Every employer or owner shall,-

(a) ensure a safe work or study environment free from sexual harassment including prevention

and deterrence;

(b) maintain a proactive program to educate all employees or students as to the definition of

sexual harassment and procedure for redressal;

(c) facilitate initiation of proceedings under this Act if an act of sexual harassment has been

brought to his or her notice;

(d) ensure that the complainant or supporter or witness is not victimised, harassed or discriminated

against for initiating or supporting or giving evidence in, proceedings under this Act;

(e) not alter to the prejudice of the aggrieved woman or witness or representative concerned,

the conditions of service prevailing immediately prior to the complaint being lodged as a

consequence to the making and prosecuting of a complaint under this Act;

(f) ensure that complainant or supporter or witness is not punished by discharging, transferring,

dismissing or otherwise for any misconduct, as a consequence to the complaint save with

express permission in writing of the Internal Complaints Committee;

(g) if the situation so demands, immediately transfer the defendant.

(2) Every employer or owner shall take all necessary and reasonable steps to prevent and ensure that

no woman is subject to sexual harassment in his workplace or educational institution by any third

party and where any such sexual harassment occurs, the employer shall take all necessary and

reasonable steps to assist the aggrieved woman to redress the act of sexual harassment.

(3) The onus shall be on the employer or owner to prove that he had taken all reasonable measures

to comply with the duties entrusted to him under this Act.

24. (1) Where an employer or owner,-

(a) fails to perform duties entrusted to him under section 23;

(b) fails to constitute an Internal Complaints Committee as required under section 4;

(c) protects a person found guilty of sexual harassment;

(d) in any manner pressurises the aggrieved woman or witnesses or supporters from initiating

or participating in proceedings under this Act or pressurise her to withdrawing a complaint;

(e) fails to implement the order of the Internal Complaints Committee; or

(182)

(f) in any manner violates the provisions of this Act;

a complaint to this effect may be made to the Internal Complaints Committee or Special

Officer, or the said Committee or Officer may take cognizance of the same suo moto and

the matter will be dealt with by the said Committee or Officer in accordance with the

procedure specified for dealing with complaints under this Act.

(2) In addition to the reliefs set out above, the Internal Complaints Committee or the Local Complaints

Committee may direct the employer to pay a penalty, to be deposited in the �Sexual Harassment

Fund� through the office of the Special Officer or compensation to the complainant or witness

commensurate with the loss or injury suffered or damages caused to her by the above wrongful

actions of employer or owner.

(3) In addition to the above, where any woman is subject to an act of sexual harassment due to the

employer of or owner where the act took place, not having taken all necessary and reasonable

steps to prevent the same, the aggrieved woman may file a suit for damages, and other relief,

against the employer in a civil court.

CHAPTER IX

APPEAL

25. (1) In taking any decisions and submitting any reports under this Act, Complaints Committees or

District Level Special Officer & Person from the Group of Experts shall, for the purposes of this

section, be deemed to be acting on behalf of the employer of the defendant, and where the

defendant is himself the employer , then the said Committees/ persons shall be deemed to be

acting on behalf of the said employer.

(2) Any defendant aggrieved by a decision or report of a Complaints Committee or District Level

Special Officer & person from the Group of Experts finding him guilty of sexual harassment, and/

or against whom action has been taken by the employer, may:-

(a) if he is a �workman� under Industrial Dispute Act, 1947:

(i) make a complaint in writing on points of fact and law, as if the decision had been

taken by the employer to the Industrial Tribunal in whose jurisdiction his workplace

falls, and on receipt of such a complaint, the Industrial Tribunal shall adjudicate upon

the same as if it were a dispute referred to it in accordance with the provisions of

the Industrial Disputes Act, 1947, and shall submit its award to the Appropriate

Government and the provisions of the Industrial Disputes Act, 1947 shall apply accordingly;

Provided that where a defendant is aggrieved by any decision or report referred to in

sub-section (2) and where the woman who was the victim of the sexual harassment

(183)

was harassed at her workplace / in connection with her work, then any complaint

referred to in subsection (2) (a) (i)shall be filed in the Industrial Tribunal in whose

jurisdiction the said woman�s workplace falls.

(ii) file any other legal proceedings, on points of fact and law, as if the decision had been

taken by the employer

(b) if she is not a �workman� under industrial law, file proceedings, on points of both fact and

law, before the forum / court before whom he would ordinarily file proceedings against a

decision of, or action taken by, the employer.

(3) Any aggrieved woman who is aggrieved by a decision or report of an Internal Complaints Committee

or a Local Complaints Committee / District Labour Officer & person from the Group of Experts

taken under this Act, and/or action taken, or not taken by an employer or head of the educational

institution in this regard, may: -

(a) if she is a �workman� under industrial law:

(i) make a complaint in writing on points of fact and law, as if the decision had been

taken by the employer, to the Industrial Tribunal in whose jurisdiction her workplace

falls, and on receipt of such a complaint, the Industrial Tribunal shall adjudicate upon

the same as if it were a dispute referred to it in accordance with the provisions of

the Industrial Disputes Act, 1947, and shall submit its award to the Appropriate

Government and the provisions of the Industrial Disputes Act, 1947 shall apply accordingly;

(ii) File any other legal proceedings, on points of fact and law, as if the decision had been

taken by the employer.

(b) If she is not a �workman� under industrial law, file proceedings, on points of both fact and

law, before the forum / court before whom she would ordinarily file proceedings against a

decision of, or action taken by, the employer.

CHAPTER X

MISCELLANEOUS

26. Employers and others responsible for the implementation of this Act will recognize that confidentiality

is important and will respect the confidentiality and privacy of complainants or defendants, to the extent

reasonably possible.

27. On the request of a Complainant, a counsellor shall be made available to her, at the cost of the

employer, at any time after the lodging of a complaint, whether before an Internal Complaints Committee

or District Level Special Officer, which shall be in addition to any proceedings / enquiries which have

been instituted under the Act.

(184)

28. (i) If at any stage after the filing of a complaint and during any proceedings in respect of it under

this Act by the Complaints Committee, the aggrieved woman shall have the right to withdraw the

complaint and the Committee/person shall permit her to withdraw the complaint and if an inquiry

has commenced, shall discontinue the inquiry.

(ii) If it is brought to the notice of the Complainants Committee, or the Committee is of the opinion

that, pressure is being brought on the complainant or the witnesses to withdraw their statements

or not go through with the complaint then the committee will record this.

29. If a complaint of sexual harassment is dismissed by a Complaints Committee under this Act, no action

whatsoever (including the recovery of any costs involved in investigating / enquiring into the complaint)

may be taken in regard to the same against the complainant/witnesses/supporters by the employer.

30. Where an aggrieved woman institutes any suit or legal proceedings in a civil court in respect of an act

of sexual harassment which is unlawful under this Act, no court fees will be payable by the woman.

31. Every Internal Complaints Committee shall furnish from time to time to the District Special Officer

concerned and every District Special Officer shall together with his return forward such return to the

Central Government and to the State Government as they may require to monitor the effective implementation

of the provisions of this Act..

32. Every employee shall have the right to raise issues of sexual harassment at the worker�s meeting and

in any other appropriate forum and it shall be discussed thoroughly in the employer and employee

meetings.

33. The provisions this Act shall be in addition to and not in derogation of the provisions of, any other law

for the time being in force.

Provided that nothing in this Act shall effect any law, agreement, contract, terms and conditions of

service or policy regarding sexual harassment at the workplace which applies to any woman employee

or student on the date on which this Act comes into force, if any such law, agreement, contract, terms

and conditions of service or policy regarding sexual harassment at the workplace is or are more favourable

to the women concerned than the provisions of this Act.

34. (1) The appropriate Government may, by notification in the Official Gazette, make rules for carrying

out the provisions of this Act.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may

provide for all or any of the following matters, namely:-

(3) Every rule made by the Central Government under this Act shall be laid, as soon as may be after

it is made, before each House of Parliament, while it is in session for a total period of thirty days

which may be comprised in one session or in two or more successive sessions, and if, before the

(185)

expiry of the session immediately following the session or the successive sessions aforesaid, both

Houses agree in making any modification in the rule or both Houses agree that the rule should

not be made, the rule shall thereafter have effect only in such modified form or be of no effect,

as the case may be; so, however, that any such modification or annulment shall be without

prejudice to the validity of anything previously done under that rule.

(4) Every rule made by the State Government under this Act shall be laid, as soon as may be after

it is made, before each House of the State Legislature where it consists of two Houses, or, where

such Legislature consists of one House, before that House.

SCHEDULE I

The following item shall be added as Item 17 to The Fifth Schedule, Part I, of the Industrial Disputes

Act, 1947:

�To dismiss, discharge or in any way adversely alter the service conditions of a female employee, (or

any fellow employee who stands as a witness in this regard), on account of her making or having made an

allegation of sexual harassment.�

SCHEDULE II

The following item shall be added as Item 11 to Schedule IV of the Maharashtra Recognition of Trade

Unions & Prevention of Unfair Labour Practices Act, 1971.

�To dismiss, discharge or in any way adversely alter the service conditions of a female employee, (or

any fellow employee who stands as a witness in this regard), on account of her making or having made an

allegation of sexual harassment.�

TOWARDS GENDER

JUST LAWS

D.S. MIYANProject Coordinator

NATIONAL COMMISSION FOR WOMENNEW DEHI

CONTENTS

PART - A

REVIEW OF LAWS

1. Dowry Prohibition Act, 1961 1-7

2. Commission of Sati (Prevention) Act, 1987 8-10

3. Code of Criminal Procedure, 1973 - (Cognizance of offence of bigamous marriage) 11

4. Indian Penal Code, 1860 12-18

5. Hindu Marriage Act, 1955 19

6. Compulsory Registration of Marriages 20

7. Eve Teasing 21

8. The Child Marriage Restraint Act, 1929 22

9. The Medical Termination of Pregnancy Act, 1971 23

10. The Indian Succession Act, 1925 24-26

11. The Minimum Wage Act, 1948 27

12. The Factories Act, 1948 28-30

13. The Guardians and Wards Act, 1890 31-33

14. The Hindu Adoption and Maintenance Act, 1956 34-36

15. The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 37-40

16. The Hindu Succession Act, 1956 41-44

17. The Christian Marriage Bill, 2000 45-48

18. The Immoral Traffic Prevention Act, 1956 49-56

19. The National Commission for Women Act, 1990 57-66

20. The Bonded Labour System (Abolition) Act, 1976 67-72

21. The Equal Remuneration Act, 1976 73-75

22. The Special Marriage Act, 1954 76-83

23. The Inter-State Migrant Workmen (Regulation of Employment and

Conditions of Service) Act, 1979 84-91

24. The Muslim Personal Law (SHARIAT) Application Act, 1937 92-93

25. The Hindu Minority and Guardianship Act, 1956 94-97

26. The Employees� State Insurance Act, 1948 98

27. The Indecent Representation of Women (Prohibition) Act, 1986 99-101

28. Indian Evidence Act, 1872 102

29. Family Courts Act, 1984 103-106

30. The Child Marriage Restrain Act 1929 107-111

31. The Foreign Marriage Act 1969 112-115

32. The Contract Labour (Regulation & Abolition) Act, 1970 116-121

33. The Indian Divorce Act, 1869 122

34. The Juvenile Justice (Care & Protection of Children) Act, 2000 123-124

PART B

BILL PROPOSED

1. The Marriage Bill, 1994 127-137

2. The Domestic Violence to Women (Prevention) Bill 138-144

3. The Orphan and Destitute Children (Adoption) Bill, 1994 145-157

4. The Criminal Laws (Amendment) Bill, 1994 158-159

5. The Criminal Laws (Amendment) Ordinance 1996 160-164

6. The Prevention of Barbarous and Beastly Cruelty Against Women Bill, 1995 165-169

7. Enactment of Delhi Prohibition of Eve-Teasing Bill 170

8. Sexual Harassment of Women at Workplace (Prevention and Redressal) Bill, 2004 171-185

FOREWORD

The National Commission for Women is a statutory autonomous body constituted by the Government

through an Act of Parliament viz �The National Commission for Women Act, 1990�. The primary mandate of

Commission is to study and monitor all matters relating to the constitutional and legal safeguards provided

for women and to review the existing legislation and suggest amendments, wherever necessary. The Commission

also monitors the proper implementation of all the legislations enacted to protect the rights of women so as

to enable them to achieve equality in all spheres of life and equal participation in the development of the

nation.

The National Commission for Women has undertaken the task of scanning the laws pertaining to

women. Within the Expert Committees constituted to study, advise, formulate and frame laws and suggest

amendments to the existing legislations the National Commission for Women made a number of recommendations

for changes and removal of lacunae in the laws.

The Commission in its meeting held on 25.5.2004 decided to update the earlier NCW�s publication

popularly known as �Blue Book� by incorporating all the amendments and new bills drafted by NCW subsequently

which need immediate attention of the Government before these are placed in the Parliament as Bills.

I am confident that the amendments and the new Bills made will receive the attention of the Parliament,

through an early reference and introduction by the government.

POORNIMA ADVANI

Place : New Delhi Chairperson

Date : January, 2005 National Commission for Women

(i)

PART - A

REVIEW OF LAWS

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