Promoting gender inclusivity towards women is a paramount imperative in today's world. Across societies, women have historically faced systemic inequalities and discriminatory practices that have hindered their full participation and equal representation in various spheres of life. Recognizing the need for gender inclusivity is a crucial step towards rectifying these injustices and fostering a more equitable and just society.

In this pursuit of gender inclusivity, it is essential to address issues related to women's rights, empowerment, and representation in both public and private domains. In law, equality of gender is a major issue because most of the time there is discrimination between individuals on irrational and unreasonable grounds be it Triple Talaq before the Shah Bano Begum[2] case or the selection of natural guardians under the Hindu Minority and Guardianship Act of 1956. This endeavour encompasses a wide range of areas, including education, employment, healthcare, political participation, and legal rights. Achieving gender inclusivity for women is not just a matter of fairness but also essential for harnessing the full potential and contributions of half the global population.

In this discussion, we will delve into the significance of gender inclusivity towards women, exploring its societal, economic, and ethical dimensions. By understanding the importance of gender inclusivity and the challenges women face, we can work towards creating a more inclusive and equitable world for everyone.

Introduction
The social norms that society considers to be appropriate for men or women are referred to as gender. These become gender normative when those expectations are met. Therefore, there are gender expectations that are set by society when we refer to men or women in terms of their gender. Contrarily, sex relates to a person's physical traits. India is the only country where gender, law, and society all share a single platform because traditionally, Indian society has been firmly patriarchal and the matriarchal system has just been designated. As a result, the laws primarily addressed the psychology of men.

However, it is believed that in order to comprehend the development of a civilization, one must consider the status of women and children in that culture.

Social Status Of Women In Past

Women in India have faced numerous challenges throughout history, including oppressive practices like the Sati system, the purdah system, limited access to education, and basic civil rights. It became imperative to establish gender equality, and during the Indian National Movement, Social Reformation Movements gained prominence and played a pivotal role in shaping India's trajectory.

• The influence of these Social Reformation Movements during the Indian National Movement was substantial, primarily due to the remarkable contributions of figures like Raja Ram Mohan Roy, Swami Dayanand Saraswati, and other social reformers such as Rabindranath Tagore. They advocated for a societal framework where women could assert their rights on par with men. After a prolonged struggle to secure women's rights, Indian women gradually began to gain recognition within the system.
• Following India's independence and the adoption of the Indian Constitution in 1950, a significant turning point occurred in the realm of women's rights and the feminist movement. Article 14 of the Indian Constitution guaranteed equality to all citizens, fostering a spirit of equality that permeated the nation's supreme law. This not only ensured equal treatment for Indian women but also extended to individuals of diverse gender identities. The Constitution, as the highest legal authority, pledged to uphold this principle.
• Indian women, alongside men who championed gender equality, embarked on a long and strenuous journey to secure a rightful place and status for women in society.

Special Legislations For Protecting The Social Status Of Women

Bengal Sati Regulation Act, 1829
The Bengal Sati Regulation Act, passed in 1829, was one of the earliest pieces of law to protect women's social position. Back in the 1800s, Lord William Cavendish Bentinck, the governor general at the time, made great efforts to preserve the rights of women who were being imitated on their husbands' funeral pyres.

Social reformers like Raja Ram Mohan Roy and Swami Dayanand Saraswathi fought hard against the Sati system because they believed it to be harmful to the wellbeing of Indian society as a whole. Sati as a system had then become a very distinct and prominent feature of Hindu society. The Bengals Sati Regulation Act was passed in 1829 as a result of the Governor-General at the time, Lord William Cavendish Bentinck, who saw the practise as a disgrace to India.

Hindu Widows' Remarriage Act, 1856
The Hindu widow's remarriage statute was then passed in 1856, which was followed by the Sati Prevention statute. India had a horrendous widows' problem. The parallel, traditional, and concurrent practise of child weddings that was taking place in India caused widows to have very particular issues. They were exploited physically, mentally, and financially in every way that could be envisaged. Indian women who were very young in age, often as early as 9 or 10 years old, were married off to men who were more than a decade older than them, sometimes 2 to 3 decades older, as a result of child weddings, which affected both men and women.

Due to the high age difference between the man and the woman, Indian women were often left without the consummation of their marriages, with very young children right after their marriages, or with husbands who passed away within a year of their union. Indian widows used to experience serious issues due to social exclusion, renunciation, etc. as a result of this practise.

Their social life was a living hell for the simple reason that their husbands had passed away. Remarrying a widow at that age was not possible because widows were regarded as unlucky, and the idea of piety or sanctity that was associated with the image that they carried had a significant negative impact on Indian society. Thus, the Hindu Widows' Remarriage Act was established in 1856. The 1856 enactment made a significant contribution by legalising widows' remarriages, which were at the time still regarded as illegitimate.

The Indian government at the time made sure that the remarriage of widows is considered to be a legal thing and this is where the journey towards the emancipation of widows in India started. Not only that children who were born out of such wedlock who were recognised as legitimate children but by conferring legitimacy on the validity of the marriage as well as legitimising the children born out of such wedlock.

Child Marriage Restraint Act, 1929
In the year of 1929, we did come up with the Child Marriage Restraint Act and one of the major contributions of the Child Marriage Restraint Act was to ensure that women are not married off until and unless they received a threshold age. So here the minimum age of marriage was fixed at 18 for women under Section 2 of the enactment. As a consequence, any parent or guardian who got their women or daughters married off before they attained the age of 18 was punished or such actions were made punishable.

The Commission of Sati Prevention Act, 1987
The Bengal Sati Regulation Act was significant because for the first time we had legislation in the country which defined the term 'Sati' and it was followed by special legislation which was enacted by the Centre and was called The Commission of Sati Prevention Act,1987. By the Bengal Sati Regulation Act, Sati was prohibited in the whole of British India that is in all jurisdictions where the British could have operated in India. Other punishable acts in connection with Sati are glorification, abetment, and aiding of Sati.

Criminal Law And Gender Concerns

When discussing substantive criminal law and fundamental legal norms in the Indian Penal Code, it is made clear that men and women must be treated equally when it comes to committing crimes and receiving punishment for them. It will be fascinating to see how the Indian Penal Code is changed to include some clauses that appear to be genderless in many ways.

Adultery

Although adultery is not a crime in India anymore, if we look at the old adultery laws in India, adultery was a crime that included a married woman since one must be sure the woman is married for the offence of adultery to be committed. For example, it could not be done to spinsters. Even though the crime involved a married lady, it was interesting to note that it was a man-to-man crime, meaning the victim's husband could bring a claim against the woman's paramour. What specifically did the woman do there, given that it was a man-to-man offence?

She was not allowed to be punished in any way, not even as a batterer, according to the law. Since the legislators likely believed that males, rather than women, had a significant role to play in the adultery offence being committed, the participation of women in the entire Act appeared to be essentially non-existent.

This was disrespectful to a woman's dignity since it implied that she was incapable of consenting, that she was easily persuaded, or that the entire act may be used to objectify her. Additionally, women were not permitted to bring charges against their husbands' female paramours. For example, if the concerned person's ex-spouse engages in sexual activity with a woman who is not the wife of the person in question. Since the legislators likely believed that men had a more significant role to play than women in the offence of adultery being committed, the woman's participation in the entire Act essentially appeared to be as good as non-existent.

This was disrespectful to a woman's dignity since we acted as though she was incapable of giving consent, was easily swayed, or could be objectified throughout the entire act. Furthermore, women were not permitted to bring charges against their husbands' female paramours. For example, if the ex-engages in sexual activity with a woman who is not the concerned person's wife, the wife cannot bring charges.

Section 375

The Indian Penal Code's Section 375's rape provision is another issue that came into the public eye following the Nirbhaya[3] case. Initially, oral penetration was not included in the definition of rape, which only covered penile penetration. Oral penetration, however, was technically not recognised as an act of rape until a significant modification to the Indian Penal Code was introduced in 2013.Additionally, it has broadened the definition of rape and sexual assault and added additional offences including voyeurism and stalking that are punishable by law. However, the fact that we did have to wait for something as grave and brutal as the Nirbhaya episode does raise eyebrows.

Recognition Of Marital Rape

Marital rape is not considered a type of rape under Section 375 of the IPC. A recent development, however, is that the Supreme Court now formally recognises marital rape as a type of rape under the context of abortion regulations. Under the Medical Termination of Pregnancy Act of 1971, married women who become pregnant as a result of their husbands' sexual abuse are now considered as rape victims even though they are married. It should be noted that under the MTP Act, only married women who underwent a change in marital status while pregnant were previously qualified for abortions after 20 weeks.

However, the Supreme Court has issued a decision that allows unmarried or single women who experience a change in their material circumstances to choose an abortion beyond 20 weeks as well. The court has specifically said that it would be against both Article 14 and Article 21 of the Constitution to deny unmarried or single pregnant women, whose pregnancies are between 20 and 24 weeks, the right to seek abortion while allowing married women in like situations to do so.

Prohibition On Two-Finger Test

The Criminal Law Amendment Act of 2013 put a stop to the practise of evaluating a victim's consent by considering her prior sexual history. However, there was no explicit clause prohibiting the use of past sexual behaviour as evidence in rape proceedings. The Evidence Act of 1872 was amended to include Section 53A, which states that, in a prosecution for sexual offences, where the issue of consent is raised, evidence regarding the victim's personality or information regarding the victim's prior sexual relationships with other people are not pertinent to the question of such consent or the quality of consent.

In Lilu Alias Rajesh & Associates v. State of Rajasthan (2013), the court initially determined that there is no doubt that the two-finger test and its application violate the right to privacy, physical and mental integrity, and dignity of rape survivors. But it went on as usual in many locations.

The unreliable two-finger test for rape victims was recently outlawed by the Supreme Court in the State of Jharkhand v. Shailendra Kumar Rai @Pandav Rai case. The judge firmly said that anyone participating in administering the exam will be in violation of the law.

Partial Defence Under General Exception

The Indian Penal Code's partial justification of grave and unexpected provocation in the chapter on general exclusions ignores the battered woman syndrome. As is well known, men are more prone to grievance over quick provocation because it belongs more to masculine than feminine psychology. Servile women respond to a situation considerably differently than males do.

In the case of Ahluwalia[4] case of abused woman syndrome was raised. Women often respond by holding onto their feelings for a very long time before suddenly reacting violently to what may have been a benign stimulus. We can consider the abused woman syndrome as well as a partial defence in that instance.

Conclusion And Suggestions
Many of our laws are out-of-date and not particularly favourable to women. At the same time, a number of helpful laws have been passed to protect women, but it is important to consider how effective they are and how long we had to wait for them to be passed. History has shown us that Indian women were either immolated on funeral pyres that carried their deceased husbands or they were buried alive following the death of their husbands. As a result, the term and practise of Sati were expanded to include these practises.

I believe it would be preferable if we had an amendment before something as horrific as Nirbhaya occurred because it would be better to have an amendment before 2013 and not wait till something like the Nirbhaya occurrence. The way society perceives them will alter significantly as a result of the law, which is a catalyst for social change. It goes without saying that having laws that support women will contribute to a change in how we view them.

In India, gender issues, laws, and society are all linked. Women require particular protection since they have historically experienced impairments. The spirit of equality is enshrined in the Indian Constitution, which mandates that women and men be treated equally. Indian laws have occasionally been created to specifically address the needs of women, but the majority of women have had to deal with prejudice in the legal system.

Women experienced discrimination in relation to a number of laws, particularly in relation to marriage and criminal laws. Even when special laws are passed, women frequently are not granted their privileges because the necessary infrastructure is not present. The Domestic Violence Act of 2005 is one instance of this.

References:

• http://docs.manupatra.in/newsline/articles/Upload/06EF3D18-696B-4E5F-A61E-80646EC0E664.pdf
• https://www.mondaq.com/discrimination-disability-sexual-harassment/798498/the-way-forward-gender-neutrality-and-gender-inclusion
• https://www.legalserviceindia.com/legal/article-3767-gender-inclusivity-in-the-indian-laws.html

End Notes:

• Pragun Bagla is a fourth-year law student at Gitarattan International Business School, New Delhi.
• Ahmad Khan v. Shah Bano Begum 1985 (1) SCALE 767 = 1985 (3) SCR 844 = 1985 (2) SCC 556 = AIR 1985 SC 945.
• [(2017) 6 SCC 1]
• ([1993] Crim LR 63)

Written By: Pragun Bagla, Centre For Legal Studies - Gitarattan International Business School
Guide: Mrs. Kalpana Devi, Professor Center For Legal Studies, Gitarattan International Business School