Status of Women
Detailed Indian Society

Status of Women: History and Associated Laws in India

Status of women |

“A woman is the full circle. Within her is the power to create, nurture and transform”     –Diane Mariechild

The above lines are taken from the book “Mother’s wit” which pushes women for psychic development to deepen self-knowledge in the early 80s of the 20th century. This was the time when the second wave of feminism had hit the world laying emphasis on the issues of equality and discrimination. Women came together to oppose the sexist political power structure and the correlation between cultural and political inequalities of women. In short, the ideology of feminism was ‘internationalised’. However, when the west started reaping the fruits of feminism, through increased women participation in workforce including politics, industry, science, and art, today’s India is still struggling to bring the two genders on the same page.

The differential treatment of the two genders in the ancient history of India is evident in contemporary literature like the ‘Manusmriti’, Arthshastra and later Vedic literature to name a few. The portrayal of women being inferior to men in the already existing patriarchal system of governance and their social conduct is clearly mentioned in the said pieces of literature. Manusmriti for e.g says that a woman must be kept in custody of a father in childhood, a husband when adult and a son when widowed depicting the dependence of women for their very existence on men. The highly revered Kautilya was no different when it came to the role of women. He defined their role as merely the “begetter of sons” and discarded widows as the inheritor of her husband’s property, as stated in ‘Arthashastra’. Upon analysing the ‘Arthashastra’, it could be concluded that prostitutes/slave women fared better in terms of rights and their economic status than domestic women who were restricted to the whims of her husband and the walls of his house. Kautilya outrightly rejected women liberation.

However, women enjoyed a relatively higher social status during the early Vedic period (2000-1000 B.C.) at par with or even more than the contemporary Greco-Roman civilizations. They had access and the capacity to acquire religious/absolute knowledge. Though they were venerated in the early vedic period, men had absolute control over them even in the good times for eg., their participation in each family ceremony as mere observer and not actively participating like men and the prevalence of child marriage, sati and polygamy. Their position started deteriorating during the later Vedic period when they were being discriminated in the grounds of education and other social rights. With the advent of Gupta period, their status in the society was even more degraded. The examples of ‘Maitreyi’ who attained divine knowledge by comprehending the high philosophy, ‘Sanghmitra’ the daughter of Emperor Ashoka was inducted in preaching Buddhism or the mention of his female students by Panini testifies that the ruling class was aware of the importance of education and did not discriminate among their son and daughter for the attainment of the same. During the Mughal period too, the position of women did not ameliorate rather, Purdah and child marriage became more common. Women, especially widows, were not allowed to marry while men practised Polygamy. 

Status of women in different parts of the world:

When we take in consideration the status enjoyed by women in the west or in fact China as well, we can follow the train of thought adopted by the British to put forward legislations pertaining to women rights. The feudal system of government, controlled by Church and Aristocracy, in medieval Europe classified the society into Nobility, Clergy and Serfs. Women were considered second-class citizens and had no legal existence. During the late middle age (1300-1500 A.D.) and the beginning of ‘mercantilism’ in Italy and Spain, there rose a new class of women bourgeoisie along with wealthy merchants who could influence the government. This improved upon the existing status of women who were then becoming financially independent. Women from lower class enjoyed more freedom than high class women who had more mobility but were expected to remain in a well defined social niche. Women were allowed to associate with the church but largely remained limited to the position in Nunnery/Abbeys and most of them were illiterate who memorised their prayers orally. However, some women gained positions of power in the medieval ages, like Theodora (475-545 A.D.) the wife of emperor Justinian of the Byzantine Empire, Eleanor of Aquitaine (1122-1204 A.D.) the wife of Louis VII and later married to King Henry II of England. While women gained acceptance from men in Church, their role in guilds were restricted by men who feared loss of job.     

Even in China, one of the cradles of civilization, women were considered inferior to men. In Confucian China, woman was guided by three feminine obediences, known as Sancong in Chinese, to obey:

1.    Her father as maiden daughter,
2.    Her husband as a chaste wife,
3.    Her sons as a widow in perpetuity dedicated to family.

These principles were even followed by prostitutes and imperial eunuchs in china to be defined as feminine. To be born a woman was considered a punishment for the sins committed in previous life. Child marriage was prevalent and a woman was divorced for being jealous or talkative apart from not bearing sons and not being respectful to the in-laws. Though, divorce was not common as it was a social stigma for both the parties. Widow Remarriage and inheritance of husband’s property was against the social norms in medieval China. Unmarried women were taxed during the Han dynasty. Similar to the upper class women in China and India, Chinese upper class women were also under strict control and had limited freedom of movement. Later in the 12th century, women started working as midwives which show that they gained some amount of freedom.

A brief background of the British conquest of India:

With the advent of Europeans in India lead by the Portuguese under Vasco Da Gama in 1499 and subsequently the Dutch (1602), the British (1609) and the French (1664) respectively, came the seed of western education and culture with them. These colonial powers, who had tasted the fruits of the Industrial Revolution, looked towards India as a new market as well as a source of raw material. The contemporary Indian society was suffering from the menace of dowry, sati, child marriage, purdah and miserable position of widows.  The British under the leadership of Captain Thomas Best in 1612 defeated the Portuguese which impressed Mughal emperor Jahangir who permitted them to establish the first English factory at Surat in 1613. The British had a trait of intervention into the internal/political affairs of the local leader under Mughal rule. Hence, they were able to control the politics of the state and enjoyed power without responsibility as in the case of Bengal under Nawab Siraj-ud-Daula. After a thrashing victory in the battle of Plassey (1757) and subsequently Buxar (1764), the British consolidated their position in Bengal and now looked forward for the entire sub-continent.  

Consolidation and Codification of religious laws by the ‘British Legal System’

The British established a common law system to legitimize their rule as foreigners and to understand the cultural aspects of the subaltern Indian society. They established ‘Mayor’s court’ in Bombay, Madras and Calcutta presidency in 1726, a new type of judicial system which superseded the existing Mughal legal system. Till now the litigations against the Hindus were decided by caste elders or village panchayats or Zamindars while in Muslims by Qazis. Diwani adalats were established in districts to try civil disputes where religious laws were applicable on the accused. Later, district Fauzdari adalats were set up for the trial of criminal disputes where only Muslim law was applicable and capital punishment was awarded by the collector at Sadar Nizamat Adalat with the assistance of a chief Qazi/Mufti. The Regulating Act of 1773 provided for the establishment of a Supreme Court at Calcutta with original and appellate jurisdictions. However, the Fauzdari adalats were abolished by Cornwallis and ‘Circuit Courts’ were established in Patna, Dacca, Murshidabad and Calcutta and were to act as court of appeal for civil and criminal litigations. The principle of sovereignty of law was established through the “Cornwallis Code”.

         Lord William Bentick, governor-general at that time, abolished the four circuit courts and transferred their functions to the collector under the supervision of the commissioner of revenue and circuit. In 1833, the first ‘Law Commission’ was set up under Lord Macaulay for the codification of Indian laws which lead to the preparation of the Civil Procedure Code (1859), Indian Penal Code (1860) and a Criminal Procedure Code (1861). Hence, the judiciary under the British established a rule of law and replaced personal/religious laws with codified laws.

Do checkout these articles about women and their status:

  1. Status of Women in India
  2. Sexual Assault: Why didn’t you seek consent?
  3. Marital Rape: The Non Existent Crime
  4. Sex Ratio in India

Laws/legislations concerning women during the British Raj:

The British were the first liberal rulers witnessed by India who unified the entire country in a political thread through codified laws and serving justice based on reason and logic, not on the basis of the prevalent superstition. They tried to ameliorate the despicable situation of women by introducing a new education system and a series of legislations concerning women.

  1. Female Infanticide: One of the significant legislations introduced by them was the prohibition of Female Infanticide through The Bengal Regulation XXI of 1795 and Regulation VI of 1802 which prohibited female infanticide. The Regulation XXI of 1795, Regulation III of 1804 and the Act VIII of 1870 expressed denunciation of this inhumane practice by the British. Prior to this, newly-born female child would be thrown in rivers, poisoned to death or left to starve to death.
  1. Abolition of Sati: Sati can be described as Voluntary death at funeral pyre of the husband. The Portuguese viceroy Albuquerque was the first to ban sati in 1515 in Goa. Similarly, the Dutch and the French banned the practice of sati in Chinsura and Pondicherry respectively. The first formal ban by the British came in 1798 within the limits of the city of Calcutta. However, it took more than 30 years of aggressive campaigning by William Carey, William Wilberforce and Raja Ram Mohan Roy to pressurise the government to enact the Regulation XVII A.D. 182 of the Bengal Code which made the practice of Sati illegal and punishable by criminal courts as culpable homicide.
  1. Widow Remarriage: The agenda of widow remarriage was a top priority for the Brahmo Samaj, however, a significant contribution was made by Ishwar Chandra Vidyasagar (principal of Sanskrit college, Calcutta), Justice Mahadev Govind Ranade, and Swami Dayanand Saraswati (founder of Arya Samaj) in the enactment of the Hindu Widow Remarriage Act XV of 1856. Moreover, Vishnu Shahtri Pandit founded the Widow Remarriage Association in 1850s and Karsondas Mulji who championed the cause of widow remarriage in “Satya Prakash” (published in Gujarati in 1852). But some of the orthodox Hindus published a pamphlet stating that the shastras opposed widow re-marriage.
  1. Child Marriage: In 1872, the Native Marriage Act (Civil Marriage Act) intended legislative action for the prohibition but had very limited impact as it was not applicable to Hindus, Muslims and other recognised religions. With the efforts of B.M. Malabari, Age of Consent Act (1891) was passed which forbade marriage of girls below the age of 12 years. The Sarda Act (1930) further increased the marriage age to 14 years for girls and 18 for boys.
  1. Right to Property: Before the Hindu Women’s Right to Property Act XVIII of 1937 and the Hindu Succession Act XXX of 1956, came into effect, laws of succession were governed by religious laws namely Dayabhaga (Bengal and Assam) and the Mitakshara (rest of India)- under which father’s widow and brother’s widow were not heirs (recognised by Hindu Succession Act, 1956 ).
  1. Indian Succession Act of 1925 had provisions for the acquisition of the deceased husband’s property by the widow and lineal descendants.
  2. In 1929 The Hindu Women’s Right to Property Act was passed to ameliorate the plight of widows who had no economic security and were dependents on the family of the deceased husband.
  3. Likewise, the customary law of inheritance was codified by the Madras Marumakkathayam Act 1932.
  1. Removal of Disabilities: Such laws prohibited the exclusion from inheritance of the grounds of renunciation of religion/caste, especially by widows.
    1. The Caste Disabilities Removal Act of 1850 set aside the provisions of the Hindu law which penalized the renunciation of religion by depriving a convert of his right in the joint-family property.
    2. The Hindu Inheritance (Removal of Disabilities) Act of 1928 prohibited the exclusion from inheritance of certain disqualified heirs.
    3. The Hindu Marriage Disabilities Removal Act XXVII of 1946 validated the marriage among parties belonging to the same gotra or to different sub-divisions of the same caste.

We have come a long way after British Raj in India. After independence in 1947 we have made improvements in many other laws for women such as The Dowry Prohibition Act, The Hindu Succession Act, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, Triple Talaq Removal etc. With the introduction of Beti Bachao scheme we’ve improved upon the Child sex ratio, enrolment of girls in primary schools. Also, on the political front, more women are successfully running PRIs and even in the capacity of ‘Sarpanch’. The status of women surely is better and stronger comparing the historical evidences; however, we still have a better way to go to protect women’s rights and work for an egalitarian society.

BIBLIOGRAPHY:

  1. Cartwright, Mark. “Women in Ancient China.” Ancient History Encyclopedia. Ancient History Encyclopedia, 19 Oct 2017. Web. 20 Apr 2020.
  2. Mark, Joshua J. “Women in the Middle Ages.” Ancient History Encyclopedia. Ancient History Encyclopedia, 18 Mar 2019. Web. 20 Apr 2020.
  3. https://shodhganga.inflibnet.ac.in/bitstream/10603/123356/8/08_chapter2.pdf
  4. Kapur, Radhika. (2019). Status of Women in Pre-Independence India.

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