Women in territorial army

The Delhi High Court has recently ruled that women are eligible for employment in the territorial army. The Court observed that the government advertisement calling for only male candidates is discriminatory and women are also eligible for joining the territorial army. The Court observed that the restrictions on enrollment of women in the territorial army contained in the advertisement are neither reasonable nor rational and are to. be quashed.
Section 6 of the Indian Territorial Army Act, 1948, lays the eligibility for employment. It states that: "Any person who is a citizen of India may offer himself for enrolment in the Territorial Army, and may, if he satisfies the prescribed conditions, be enrolled for such period and subject to such conditions as may be prescribed."
The Court observed that the term 'any person' used in Section 6 of the Act includes both male and female and women cannot be discriminated against on the basis of gender. The Court observed that the advertisement to the extent that it excludes women from appointment to the territorial army is ultra vires Articles 14, 15, 16 and 19(1)(g) of the Constitution of India and hereby quashed

 

Triple talaq law

After the Supreme Court declared the practice of triple talaq or pronouncing talaq inboxed a single sitting as void, the Parliament passed the Muslim Women (Protection of Rights on Marriage)Act or the Triple Talaq Act. Under the provisions of this Act, triple talaq is void and illegal and the marriage subsists even after its pronouncement. If a husband pronounces irrevocable triple talaq or talaq in a single sitting, he will be punished with a term upto 3 years and fine. The wife is entitled to get maintenance for herself and her children. The offence is cognizable and non-bailable, hence, the police has a right to Arrest and investigate even if the wife does not make a complaint.
The Act in its present form is open to great misuse. Firstly, Muslim marriage is a civil contract, and a breach of it cannot amount to a criminal offence. Again, if a husband is imprisoned for pronouncing triple talaq, then it closes all doors of reconciliation between the couple and the marriage would subsequently end. Thirdly, in families where the husband is the sole breadwinner, imprisonment would lead to the wife and children without any source of income as he cannot earn and provide for them. Fourthly, there are chances that any person with malafide intent can complain against the husband and land him in prison and thereby break a family.
The Act does not give Muslim women any new rights. Section 125 of the Code of Criminal Procedure, 1973, already has provisions for the maintenance of wife and children. The Act is subject to grave misuse and does not protect the interests of Muslim women, rather, it can add to her woes.

Marriage cannot denude a woman of her civil rights

Recently, while hearing the case of a Parsi woman who was denied the right to perform her parents' last rites because she had married a Hindu, the Supreme Court while overruling the order of Bombay High Court, observed that marriage does not strips a woman of her civil rights. The Court observed that the religion of the wife does not merge into that of her husband after marriage. Marriage does not mean that a woman mortgages herself to her husband. Her religion does not merge with that of her husband, only she, on her own volition can give up her religion. The Court observed that when a man who marries outside of his religion is not denied any civil rights then the same should be applicable for the woman as well. The Court also observed that 'the Special Marriage Act was enacted so that a man and a woman professing different faiths can marry and retain their religious identity after marriage. There is no question of merger of woman's religion with that of her husband's. Only she on her own volition can give up her religion..' The Supreme Court in the instant case told the Valsad Zoroastrian Trust to shun the rigidity and understand the emotions of a child towards her parents and reconsider its decision.

Artificial insemination

When there are issues relating to the husband being impotent or carrying genetic disorders, the couple may resort to artificial insemination(AI) to get a child. When the sperm from husband is used it is called artificial insemination homologous(AIH) while in case of donor it is called artificial insemination donor (AID) or heterologous artificial insemination. In case of a donor, the donor must be under the age of 40 years, unknown to both the wife and husband and similar should not know the wife and the husband. he should have children of his own and should be biologically and genetically satisfactory. Before the physician undertakes to inseminate a woman, it should be established that there is no bar to a woman conceiving, that her husband is sterile or there is risk of his passing on hereditary diseases to the child if he fathers a child. The court should not deny the legitimacy when consent to the technique of artificial insemination was expressed or implied by the consent of the husband. There is no bar to either single, divorced women or lesbian couples for being given AID, however, in these cases the child would be deemed to illegitimate.
Legal implications
(1) where the husband is impotent, use of AIH does not amount to consummation of marriage.
(2) as a single donor can father a large number of children, there can be consanguineous marriages in the future.
(3) AID does not amount to adultery as there is no intercourse between the wife and the donor.
(4) there should not be any segregation of XX/XY chromosomes for AI.

Artificial insemination

Rape of minor wife

Section 375 of the Indian Penal Code, 1860, defines rape as a sexual intercourse either without the consent of a woman or with her consent which was obtained by either by putting her in fear, or when she was intoxicated or unsoundness of mind or if she is under the age of sixteen or is under the mistaken impression that the man is her husband. The exception to the section provides that sexual intercourse by a man with his wife does not amount to rape except when she is under the age of fifteen years.
The given exception created a lacuna in cases of minor wives who were between the ages of fifteen and eighteen years. If a man had sexual intercourse with his minor wife against her will, it did not constitute the offense of rape if she was above the age of fifteen years. The Supreme Court has recently increased the age of eighteen years for the wife, below which the man would be considered to have raped his wife, if he has sexual intercourse with her against her will and consent.
The Court has observed that all instances of sexual intercourse with a minor wife would constitute the offense of rape whether with or without her consent. A child does not lose her right to decline sex to her husband just because she is married. The order of the Apex Court is laudable as it can be a step in furtherance of preventing child marriages and may be a step towards declaring them void ab initio.

Law relating to refugees

The present day world is faced with a challenge of having refugees from various asian and African countries who are fleeing persecution. The right to seek asylum has been recognized by the Universal Declaration of Human Rights in article 14 which states that everyone has a right to seek and enjoy in other countries asylum from persecution, provided it is not prosecution arising genuinely due to non political crimes or from acts contrary to the principles and purposes of the United Nations.
The Convention relating to the Status of Refugees, 1951, describes and lays out the various rights of refugees and duties of the sheltering nations. Article 1 gives right to seek asylum from persecution arising due to race, religion, nationality, membership to a particular social group or political opinion in a country other than the one of his nationality and unwillingness to return there. However, the provisions cease to apply if he voluntarily returns to his country of nationality, or voluntarily reacquires nationality or acquires a new nationality, or if he voluntarily reestablishes himself in his country of nationality or prior residence, or if due to change in circumstances, he can no longer to refuse to avail protection of his country or is able to return to the country of his prior residence. The provisions of the Convention do not apply if he has committed serious crimes against peace or war crimes or he has committed serious non political crimes or is guilty of acts contrary to the principles and purposes of the United Nations.
Article 3 prohibits member states from discriminating on the grounds of religion, race or country of origin.
Article 4 gives the person seeking asylum to practice his religion and give religious teaching to his children.
Article 16 gives the refugees right to free access to courts in the country of asylum. The asylum seeker has a right to enter into a wage earning employment (Article17) as well as self employment. (Article 18)
Article 20 provides that where a system of rationing exists, the refugees shall be given the same rights as the nationals Article 22 gives refugees same access to elementary education as the nationals.
Article 26 gives there freedom of movement within the country of seeking shelter. Article 27 provides that the country has to issue identity papers to a refugee not having valid travel documents. Article 28 requires the country to issue travel documents for the refugee to travel outside the country of shelter.
Article 31 provides that the refugees who have entered a country unlawfully shall not be punished if they present themselves for registration within reasonable time. Article 32 prohibits the States from expelling refugees from their Territory except on the ground of public order or national security. Article 33 prohibits returning a refugee to a country where his life or freedom would be threatened on account of his race, religion, nationality, membership to a particular social group or public opinion.
Article 34 provides that the Contracting States should make provisions for the early assimilation and naturalization of the asylum seekers.
The member States are required to provide asylum to anyone who wants to escape persecution and also to provide him with facilities to lead a productive life. They cannot return them to the country where they are facing persecution and their life or liberty is endangered instead the contracting States are required to provide a safe haven to the asylum seekers.