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Gender Biased Laws In IPC And Fundamental Rights

Whether the gender bias in the provisions of IPC is in violation of fundamental rights enshrined in the Constitution of India or not?

At the time when IPC was drafted and codified in 1860 by Lord Macaulay, Indian society was mostly patriarchal where there were male domination and women were considered as the weaker gender in the society. They were made to submit to the male domination and were not allowed to go out of the house as they were mainly meant to run the houses to support their husbands and look after household chores.

Owing to these atrocities and discriminations which women used to face, the laws made at that time were generally in favour of women so that they could be brought at equal footing with men. Indian Penal Code was also drafted keeping in view the idea of women empowerment so that they could be no longer a subject to men and have their own identity.

The provisions in the IPC and the DV act is not the violation of the equality, it is for maintaining the equality between the men and women. According to the traditional mind set of the Indian society women are always expected to be in home by doing household chores and looking after the husband and the children. Even if they are educated women still not getting the equal opportunity as men.

The crime identifies under Indian Penal Code in favour of women are rape (section 375), Kidnapping and abduction (section 363-373), Molestation (section 354), Sexual Harassment (section 509), Torture (section 498 A), Dowry Deaths (section 304B).

In the case of Vishaka v. State of Rajasthan (1997), The court laid down 'The Vishaka Guidelines' which were later converted into the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. This case pertains to a woman Bhanwari Devi who was gang-raped by five men as revenge on her for attempting to terminate the marriage of an infant and to fight against the male ego in Rajasthan which was part of her job. The court held that sexual harassment was a clear violation of rights under Articles 14, 15, 19 and 21 of the Indian Constitution.

In the case of Air India v. Nargesh Meerza (1981), an inclusive reading of Article 14 was done by the Supreme Court and it was decided that employment cannot be denied to any person on the grounds of sex. For inflight services, stress was laid on the height of the youth, appearance, and glamour quotient of the employees. An aviation company called Air India regulated that the air hostesses should retire if they reach the age of 35, conceiving a child, or on marriage whichever occurs earlier. These conditions were derogatory and offending and hence challenged in the court and were later struck down.

In the case of Laxmi v. Union of India (2015), Amidst increasing acid attacks, the Supreme Court was called out to issue directives and suggest ways to prevent such attacks. The court instructed the Governments at both levels to prohibit the unauthorised sale of acids across the nation. This decision paved the way to enforce harsher punishments for people involved in such crimes.

In the case of Vineeta Sharma v. Rakesh Sharma (2020), The Supreme Court held that daughters will have equal coparcenary rights in the Hindu Undivided Family by their birth and cannot be excluded from inheritance irrespective of whether they were born before the amendment of 2005 to the Hindu Succession Act, 1956.

In the case of Shayara Bano vs. Union of India talks about the triple talaq concept, wherein Rizwan Ahmed divorced his wife, Shayara Bano, in 2016 after 15 years of marriage. The Supreme Court ruled in favour of Shayara Bano, thereby considering triple talaq unconstitutional. Triple talaq violates Article 14 as the husband can break the marriage ties instantly without the consideration of his wife or` the effort to save the marriage.

In the case of Mrs. Mary Roy vs. State of Kerala and Ors, Mary Roy, a widow, was denied the family inheritance of her parents. Her brothers took all the property by crook, but she was determined to have it because it was her right. She felt her right to equality had been infringed and thus went to court to fight the case against her brothers. This case shows us the long-standing patriarchal mindset and dominance in our Indian society.

India has always been a gender-sensitive society and this has been a matter of concern. The current social structure in India states that women are still considered inferior to men. Moreover, India's rank in the World Economic Forum's Global Gender Gap Index 2020 is 112th out of the 153 total countries covered. India has slipped by 3% in offering equality of opportunity to men and women. So, the provisions in the IPC and the DV act is not the violation of the fundamental rights enshrined in the constitution.

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