Rights of women in Islam

This article is written by Vrinda Chauhan. Vrinda is currently pursuing BA LLB (Hons) from Aligarh Muslim University.

 

 

The sense of freedom, entitlement and liberation are the basic requisites any individual would want in life. Some struggle for it while others succumb to it but no one wishes to lead a life without any rights or privileges. Women and their representatives have been fighting for years up until now, for equal rights for them. But Islam has delineated the rights of women almost 1400 years ago, a time when feminism was not even heard of. Islam advocates for spiritual equality where both male and female have the same spirit, enjoying no superiority over one another in the spiritual sense. (Noble Qur`an 4:1, 7:189, 42:11). The two genders in Islamic perspective share equal rights but do have specific roles. This means that they may enjoy certain benefits in some cases but in total their rights are balanced.

Glancing at the rights a woman has been enjoined in Islam, be it economic rights, social rights and political rights one would find a fair representation of the fairer sex in the life and times of Prophet and also after him.

Islam gives women the right to inheritance, and to spend it as per her desire without even having to spend it on her household, which is the sole responsibility of the man in the house. This is in itself liberation from the worries of earning for the sustenance of the family from which women are exempted. But this does not mean Islam opposes the notion of women to take on a profession. Rather, Islam encourages the idea of female physicians, nurses and teachers in the society. But that comes with a condition of maintaining the proper conduct as prescribed by the Qur`an. For this, she is entitled to equal pay for equal worth of work.

Regarding the social aspect, women are rather favoured in this context where they are entitled to extra care and respect from their fathers, brothers, husbands and children. Oppression of a girl child is considered a disgrace. The parents who bring up their daughters well are promised of better rewards in the hereafter. The duty, not the right, the duty of education, as the Prophet said, is a duty on every Muslim, be it male or female.

During marriage, the bride is entitled to a gift from the groom in terms of mahr (dower) rather than the prevalent dowry which is the cause of a lot of social disgraces imparted on women. Islam allows the women to retain their identities and properties even after marriage and consider the relation to be that of partners rather than of master and slave. Even in the case of dispute both the partners have an equal say and are entitled to absolve the relationship. Even motherhood is a divine sanction in Islam where the Prophet has enjoined the Paradise to be at the feet of a mother.

Having pronounced all the above recognition of women in Islam it can be rightly said that Islam empowers women in a befitting manner.

A Need for Acknowledging “Marital Rape” as an “Offence”

This article is written by Pooja Ogale. Pooja is currently pursuing her LLM (Specialization in Constitutional and Administrative Law) from GNLU, Gujarat.

 

 

In the era where people are talking about globalism, development and liberalism, we may still witness the woman position in India entangled in social structures deeply rooted in Indian society in the name of family, religion, caste, community and society. It is a general observation that woman are vulnerable to various crimes in the society. The rate of crimes against women is levelling up day by day. The list of crimes against women is exhaustive; some of the major crimes include dowry death, domestic violence, sexual exploitation at the workplace, rape, female foeticide, abduction etc. The position of the women in the society is vulnerable to exploitation even at a public arena, parental home as well as her matrimonial home.

One of the most important yet neglected contemporary socio-legal issue which is existing in India since time immemorial is the issue of Marital Rape. This concept is gaining consensus in recent times and many debates are going on over the aspect of incorporating ‘marital rape’ as an offence in Indian Penal Code.The Indian Penal Code defines ‘rape’ and provides punishment for the same in it, but the aspect of marital rape is totally neglected.

In order to devise laws over the issue of marital rape, it is important that we know that what constitutes marital rape.“Marital Rape” can be referred as an act of having unwanted intercourse by the husband with his wife by inflicting physical cruelty or violence on her.In the aspect of marital rape the husband is the offender or in other words, he is the rapist. The irony can be observed that when the same act is commenced by the person other than the husband that constitutes rape under the provision of Indian Penal Code and is punishable but when the husband by inflicting force or physical and mental cruelty rapes his own wife is not even considered to be an offence. Woman is considered to be a private property or an object and is subjected to sexual as well as a physical abuse of husband.[1]

Marital Rape is one of the biggest challenges which we are facing in the socio- legal aspect in the society. In Indian culture,a girl is considered to be a burden on her parents and is considered to be a liability for the reputation of their families thus often the offence of the marital rape is neglected. Often the husbands consider their wives as their slaves or as their property and force them to do things according to their wishes. Hence force them to have intercourse by abusing them and with assault also. It is important that the men should respect woman and indulge into intercourse even with their wives with their consent as they are also human beings. It is important that husbands treat their wives as their life partner rather than their slaves or property where they inflict their whims and wishes.

We all acknowledge that marital rape is wrong and it should be stopped and it should be curbed. But the problem is the lack of the legal provisions, lack of legislations. Most importantly there is a lack of acknowledgement of this offence in India. Indian culture connotes sacramental value to the marriage and having intercourse after marriage even by force by the husband without the consent of his wife is not considered to be a rape. It is important that we come out of the cultural and religious beliefs attached to this relation and think in the human rights perspective or in the perspective of the rights of the woman or on the perspective of the morality.

The society should acknowledge the issue and should raise the concern over this issue to be codified as an offence punishable under Indian Penal Code. It is important that the woman despite hiding their plight should come forward and raise their concern over the abuse and cruelty inflicted upon them. Often the women of India in order to save their marriage or in order to uphold the reputation of the parental home or matrimonial home do not raise their voice over this issue and suffer of marital rape.

Mrs Maneka Gandhi, Minister for Women & Child Welfare, has recently, commented that due to the lack of education, poverty, religious beliefs and societal norms it is difficult to make laws on marital rape.[2] There is a need well-enacted law against this evil for protecting women from the non- consensual intercourse with her husband. Marriage even if considered to be sacred should not be considered to be a permit to inflict force on woman for having intercourse. Women should be protected from such abuse and should be respected. There is a need to have legislative provisions to safeguard the interest of the woman and protect them from the sexual abuse.

[1]RathPriyanka, “Marital rape and Indian Legal Scenario”

<Accessible at:  Indialawjournal.com/volume2/issue_2/article_by_priyanka.html>

(Last Accessed on:  16th September, 2016).

[2]Will India have a law against Marital Rape? Pressure on government grows”, June 2016.

<Available at: everylifecounts.ndtv.com/will-india-have-a-law-against-marital-rape-pressure-on-government-grows-3214.>, (Last Accessed on 16th September, 2016).

Judicial Separation: A second thought to divorce

This article is written by Shreya Bansal. Shreya is commerce graduate from Shri Ram College Of Commerce and is currently pursuing Bachelors Of Law from Faculty Of Law, DU.

 

 

A marriage is a blissful companionship of two people sharing mutual love, trust and understanding which promises to be the most beautiful phase of a person’s life. But sometimes the fruits of misunderstanding, distrust and anger get sown in it which might make surviving each other’s company even for a minute to be an excruciating experience. Well, most people assume that the last resort to end this menace is divorce. Is it so? Certainly not.
There is a provision of Judicial Separation under The Hindu Marriage Act, 1955 to give time to each of the partners to resolve their issues by living separately. The basic rationale behind this kind of provision is that through the method of judicial separation, both the partners get a chance to think rationally about their relationship without the strain of living together which results in tension and further wear and tear of their marriage.
A decree of judicial separation does not answer the question of continuance or discontinuance of marriage but it frees the partners from the obligation to live together, thus preventing them from indulging into any other fights or misunderstanding which can strain their marriage further.
As per Section 10 of The Hindu Marriage Act, 1955 a case for judicial separation can be claimed on the grounds of cruelty, adultery, desertion, forced conversion of religion, incurable diseases like leprosy, insanity, venereal diseases that are communicable, renunciation of the world by a spouse on religious grounds, either of the spouse not alive and seen for more than seven years. Moreover, a woman can claim judicial separation if there is enough proof that her husband solemnized another marriage and his other wife is still alive as well as on grounds of rape, sodomy, and bestiality.
One of the interesting features of judicial separation is that it is upon the discretion of the court whether to grant judicial separation or divorce straightway depending upon the facts and circumstances of each case. Thus, a second chance will be even to all the couples to resolve their issues keeping into consideration the severity of their differences and the scope for further reconciliation.
As per Section 13 of The Hindu Marriage Act, 1955 if a couple is not able to reconcile their differences within the period of one year from the date on which the decree of judicial separation is granted and are not able to cohabit again, they can obtain a divorce on this ground itself.
On the other hand if the parties are able to reconcile their differences during the period of one year of judicial separation and want to cohabit again, they can get their decree of judicial separation annulled anytime by the court. So as per Section 10(2), the court has the power to
rescind the order of judicial separation if it considers it just and reasonable to do so, provided such power of annulment is exercised with utmost care and upon complete satisfaction with regards to the same.
Hence, not only nature but law also gives second chance to all. To protect the institution of marriage and maintain the trust of people of our country into the same, the legal institution of our country has come up with this system of judicial separation for preventing them from taking any decision in the heat of the moment and resorting to a wrong life changing decision.

The curse of the objective reasonable man on criminal law in India

This article is written by Simran Bhinder. Simran is a fourth-year law student at O P JINDAL GLOBAL UNIVERSITY.

 

 

There are certain defining features of every legal document and every code of law. One of the major features of the Indian criminal justice system is the test of a Reasonable man within it. This mythical creation of legal theory is supposed to be a sensible, rational man who is objective and devoid of emotions.

This article is not simply a critique of the idea of a reasonable man but aims at bringing out the problems which the criminal law is facing today because of the absence of subjectivity. It is aimed at discussing the consequences of the “absences” of subjectivity, which are a result of the “presence” of the concept of the objective reasonable man in Indian criminal law.

OBSESSION WITH OBJECTIVITY

“EVERY CRIME IS INHERENTLY DIFFERENT”

This basic principle on which the entire science of criminology is based has never been recognised by the legal apparatus in India which is completely smitten and obsessed by the idea of objectivity. The law assumes that there is a common ground and a few common features that define every crime and on which every criminal activity takes place. This assumption gives rise to the numerous “objectivity tests” and “objective standards” that are present within the criminal law today.

For example, whenever it has to be decided whether or not the defence of grave and sudden provocation is applicable ( e.g. R vs TRAN ), both the subjective as well as an objective standard are applied and only then is it decided whether or not the act was grave and sudden enough. Something as personal and as individually different and variant as a particular person’s reaction to a certain act is also supposed to be according to the standards set by the mythical reasonable man who is obsessed with objectivity.

In GYARSIBAI vs STATE (AIR 1953 M.B. 61) the woman was held guilty of murdering her children because when subjected to the objective standards of reasonable behaviour the court found that her behaviour was irrational. However, it can be argued that the verdict could have been completely different had the subjective aspects the case been considered. While the objective standard views her as a woman, who after a fight with her sister in law decided to drown herself and her children the specific facts of this case point out that this woman, who was financially completely dependent on her husband, had been thrown out of her house along with her four young children by her sister in law, who had always been in a situation in which she exerted considerable influence on her husband. Thus even though the objective standard views her as a woman who murdered her children in cold blood , the subjective view would see her as a woman who , out of desperation and a valid apprehension of the future was forced to kill her own children.

Although it is important to have a certain set and uniform standards and guidelines which should be considered while deciding on cases , it is equally important to take into consideration the Unique facts, the situations and the conditions under which a crime takes place . The lack of objectivity can prove to be a major hindrance in the path of justice.

A major critique of the decision of the judiciary, to try one of the main perpetrators of the 2013 Delhi gang rape as a juvenile was this inability to subjectively view his crime, and take into consideration the facts of the situation. He had committed the crime only a few weeks before turning a legal adult. Yet he managed to escape the rightful consequences of the horrendous crime which he committed because of the almost mechanical working of the judiciary , which is obsessed with the idea of following the procedure and technicalities to such an extent  , that it often forgets to be just.

Despite all the problems that are stated above The Indian Penal code is still a very strong, relevant and far-sighted document that is, without any doubt, one of the most complex and well written criminal codes in the world. The basic problem with it remains that it was not updated and modified to suit the changing circumstances and needs of the changing times.

Also, it is important to bring out a social and moral consciousness amongst the judiciary in India. They need to be trained in a way in which they can base their judgements on legal rationale’s that are not only consistent with the law but which also uphold the Morden ideas of justice and equality.

The curse of the OBJECTIVE REASONABLE MAN can only be removed once all these issues are addressed and rectified.

How DU Photocopiers brought a breakthrough in Copyright Infringement?

This article is written by Srishti Gupta. Srishti is a fourth-year law student from Vivekananda Institute of Professional Studies, GGSIPU.

 

 

The Delhi High Court clearly recognised the socio-economic realities of the India in the case of THE CHANCELLOR, MASTERS & SCHOLARS OF THE UNIVERSITY OF OXFORD & ORS. V. RAMESHWARI PHOTOCOPY SERVICES & ANR. and caused a major victory to access to justice.

The suit was filed before the Delhi High Court in 2012. In September 2012, an order directing DU to examine the proposal of the plaintiffs that they obtain a license from Reprographic Rights Organisation such as IRRO for preparing course packs was passed. In October 2012, Rameshwari was restrained by the order of the Court from making or selling course packs until final disposal of the application for interim relief.

The first issue raised was whether the  making of course packs by the defendant amounted to infringement to which the defendant contented that this question shall arise only if the making of course packs is not protected under Section 52.

The Court then noted that making of course-packs would fall under Section 52(1)(i) which states that the reproduction of a work by a “teacher/ pupil in the course of instruction” would not constitute infringement. The question now before the court was whether the interpretation of this section was restricted to an individual teacher and an individual pupil or whether it would extend to an institution and its students.

The Court unequivocally held that it cannot be so restricted especially when considering the societal realities. Education in India has for long been institutionalised and therefore, the law cannot and should not be interpreted in such a fashion that it does not reflect the realities of our education system.

The second main contention was with respect to the interpretation of the term “course of instruction” where the court held that the legislature specifically chose to use the word instruction rather than lecture, and therefore, the interpretation of the term “instruction” cannot be limited to that of lecture.

The Court then attempted to determine when the imparting of instruction begins and ends in a university. To this effect, the Court examined various judicial interpretations of the phrases “instruction” as well as “in the course of” and came to the following conclusion that “in the course of instruction” would include reproduction of any work while the process of imparting instruction by the teacher and receiving instruction by the pupil continues. This process begins from the time when the teacher starts to prepare himself/herself for the purpose of teaching the students to the time when the student prepares notes to reproduce what was taught to him or her. This shall also include clarifying doubts, holding tests and answering questions in the examination. Resultantly, reproduction of any copyrighted work by the teacher for the purpose of imparting instruction to the pupil as prescribed in the syllabus during the academic year would be within the meaning of Section 52 (1)(i) of the Act.” 

The Court approached this issue from a different angle as well and noted that a student issuing a book from the DU library and copying the same, whether by hand or by photocopying for her private or personal use would be protected under fair dealing. Therefore, it was absurd to state that if the DU did the exact same act as a direct result of its resource constraints, then the action of DU would constitute infringement and not be protected under fair dealing.

Hence, the Court stated, “When the effect of the action is the same, the difference in the mode of action cannot make a difference so as to make one an offence.”  The Court held that it was irrelevant whether DU was making the course packs by itself or had licensed it to a contractor as long as the impugned act was protected under Section 52.

Moreover, the Court stated that Rameshwari was not a competitor of the plaintiffs and if Rameshwari was not permitted to do so, the consequence would not be that the students would buy the textbooks. Instead, they would have to resort to sitting in the library and copying out the pages by hand.

The Delhi High Court also clearly explained the nature of copyright thus: “Copyright, specially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public.”

Protracted crisis: A need to understand their need

This article is written by Vrinda Chauhan. Vrinda is currently pursuing BA LLB (Hons) from Aligarh Muslim University.

 

 

It is not righteousness to turn your faces to the East or to the West. Rather, those with true righteousness are those who believe in Allah and the Last Day, the Angels, the Book and the Prophets, and who, despite their love for it, give away their wealth to their relatives and to orphans and the very poor, and to travellers and beggars and to set slaves free, and who establish prayer and pay welfare tax; those who honour their contracts when they make them, and are steadfast in poverty and illness and in battle. Those are the people who are true. They are the people who do their duty.  The Quran (Surat al-Baqara: 177)

The trials and tribulations are ought to come in  everyone’s life. Here we all as humans are ought to serve each other out of the feeling of one brethren. The above verse is a path to take heed to.

Thus to define Protracted Crisis: According to FAO

“Those environments in which a significant proportion of the population is acutely vulnerable to death, disease and disruption of livelihoods over a prolonged period of time. The governance of these environments is usually very weak, with the state having a limited capacity to respond to, and mitigate, the threats to the population, or provide adequate levels of protection.”

We made environment to comfort ourselves and look what we are heading to.

Struggling to survive!

Non-functioning of the governmental policies, strategies failed, demands soaring high.

Protracted crisis is bound to happen.

 Ages and generations suffer retaining and passing on their misery to the next one.

 No voice being raised, raised voices unheard!…

For the survival food is the basic essential yet there are places where this very basic need is being wasted and dumped due to non-usage. Death and disease are associated with the food intake. Yes, the real crisis being the Food Crisis.

The livelihood is affected when the proper food is not provided.The sufferers are chained to the conditions they face. Yet some countries who claim to be the super-powers and resourceful, enjoy their lavish lifestyle, bettering it on the cost of the pains of others. What an irony the scenario depicts!-  that on one side people for their mere enjoyment play with tons of milk, tomatoes for instance, juxtapose are those areas on this earth where people have been taking pains to have one time meal. Discrimination is widespread, women being exploited, poverty being unreported, meek is downcasted. And more to be felt than to be mentioned. But the same is to be dealt and addressed for it’s our obligation to the needful to provide our best.

No doubt the efforts have been made to recover those countries from this crisis which is taking toll on human lives. Yet the requirement is for the efficient efforts which are uncorrupted and relieving. Need is to gather the developed and efficient states to run campaigns and divide the efforts to drive the sufferer countries out from the protracted conditions.