Sr. No. Content Page No.

 The Status of Women in India

 Nature and Causes of Female Crimes
 Honor Killings
 Indian Penal Code-
 Dowry Death (S. 304B);
 Abetment of Suicide (S. 306);
 Causing of Miscarriage of Injuries to Unborn Children (S.312 to 314);
 Outraging the modesty of women (S- 354- A, B, C, D & 509);
 Kidnapping and Abduction- (S.359 - 369);
 Prostitution (S.372, 373);
 Rape (S.375, 376- A, B, C, D, E);
 Un-natural offences (S.377);
 Offence relating to Marriage (S. 493 to 498);
 Cruelty by Husband or Relatives of Husband (S. 498-A).
 Special Acts –
 The Immoral Traffic (Prevention) Act, 1956
 The Dowry Prohibition Act, 1961
 The Medical Termination of Pregnancy Act, 1971
 The Indecent Representation of Women (Prohibition) Act, 1986
 The Commission of Sati (Prevention) Act, 1987
 The National Commission for Women Act, 1990
 The PC-PNDT, 2004
 The Protection of Women from Domestic Violence Act, 2005
 The Information Technology Act, 2008
 The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH)
 The Status of Women in India
The fight is not for woman’s status but for human worth. The claim is not to end inequality of woman but to restore universal justice. The bid is not for loaves
and fishes for the forsaken gender but for cosmic harmony, which never comes till woman comes.
- Dr. Bir Pal Singh (NLU Bhopal)
(I) STATUS OF WOMEN: PRE – INDEPENDENCE
The status of women in India was under male dominance and was primarily dependent upon their upbringing and the society in which they lived. Education, employment
opportunities were next to nil, forced child marriage, purdah system, sati, restraints were imposed upon widow remarriage, female infanticide, purdah system, polygamy,
female foeticide and so forth were the highlights. This period observed the exclusion of women from rendering an effective contribution in social, economic, religious
and political spheres. They were confined merely to the household responsibilities.
Ancient Period: The study of the historical position and status of a woman in any civilization or at any period of time is of importance in order to comprehend its spirits
and appreciate its excellences. It may be said that there is no ending debate regarding the status of women in primitive communities, the ideas that the primitive people
were barbaric have led some to wrap up the idea that women had been subordinate to men. In premature unrefined societies, the communities had not yet emerged from
barbarism and there hardly existed any checks on the tyranny of men over men and during that era the muscle was an indispensable element in success and the man was
stronger in it than women. Thus, it was far from surprise that men during that point of time had established a kind of superiority over women based on their physical
strength, muscle power and bodily vigor. But irrespective of these facts the position or status occupied by women was much higher than that could be expected at the
dawn of the civilization.
In the ancient India, women enjoyed equivalent status and rights to that of their male counterparts. (Mishra, 2006) Long back it has been observed by one of the greatest
law givers, Manu, that “where women are honoured there reside the gods”. According to ancient Hindu scriptures in order to have a religious rite performed perfectly
a man need to be accompanied by his wife as they are befittingly called ‘Ardhangani’ i.e., better half and participation of wife is essential to any religious rite. Married
men along with their wives are allowed to perform sacred rites on the occasion of various important festivals. Besides as far as education is concerned, in the early
Vedic period women were given proper education and it can be perceived from the works of Grammarians such as Katyayana and Patanjali. The concept of ‘Swambar’
was there through which women had the freedom to select their husbands, thus in a number of facets of life women were in better position as compared to their male
counterparts.
They were considered to be in an equal stratum so far as share in the social and religious life is concerned. Most of the religious ceremonies were in vacuity without
the participation of wife with her husband. Moreover, the hymns of Rig Veda were composed by scholars like Gargi, Lopamudra, Maitreyee and two verses of Rig
Veda were composed by Lopamudra who was the wife of Rishi Agasti, thus during the Vedic period the status of women was not lopsided to that of men.
Medieval period- The system of Purdah and Jauhar were introduced by the Muslim and the Rajput communities. Unfavourable influences on women’s life were:
Polygamy, Sati, Child marriage, Dowry System, Right to Property, Female Infanticide. In some parts of India, the Devdasis were sexually exploited.
Although Islam boldly focused upon the injustice done to women, and put emphasis upon the perspective that women also need to be provided with equal rights and
opportunities and allowed to achieve their desired goals and objectives. In addition, instructions were given that women should be treated with respect and deference.
Any kind of discrimination should not be imposed upon them on the basis of factors such as family, status, caste, class, race, ethnicity, creed, language, occupation and
socio-economic background.
Human Rights of Women in Islam: Men and women are regarded to contribute an equal part in humanity having equal dignity in the social and religious status.
1. Right to Live- Female infanticide and Foeticide practice eradicated.
2. Right to Education- girls were provided with education, as it was believed that an educated woman would be able to carry out the household responsibilities, health
care, child development, preservation of the environment and so forthin a well-organized manner.
3. Right to Equality- Wives are provided with the same rights as their husbands, in terms of bringing about improvements within the overall quality of life. When any
major decisions are to be made regarding an issue or a problem, then both were allowed to give their ideas and suggestions.
4. Right to property- In accordance to Islam, the property of the spouses is regarded as separate. The husband and the wife also have the right to manage their property
independently. Women can buy or sell independently.
The Position of Women during Mughal Period were still degraded. The purdah system was given significance under the Mughals especially upper class and not lower
class. Prostitute was considered to be the necessary social evil. Widow re-marriage was not permitted among the Hindus, except for some of the lower classes, sati was
observed. The saints like Chaitanya, Nanak, Kabir, Meera, Ramdas and Tulsi stood for the rights of the women to religious worship. The saints encouraged women to
read religious books and to educate themselves. Although Bhakti Movement gave a new life to women, this movement did not bring any substantial change in the
economic status of women. Hence, women continued to hold low status in the society.
British Period: With the advent of the British rule there were several changes in the socio – economic structure of our society, some substantial progress was made in
eliminating inequalities between men and women in matters of Education, Employment, Social and Political Rights during this period. Many legislative enactments
were enforced by the legislators for protection and promotion of women, like:
1. Female Infanticide- In the year 1795, female infanticide was declared to be a murder by the Bengal Regulation XXI.
2. Sati (abolished in 1798 –Raja Ram Mohan Roy with Lord William Bentinck),
3. Widow Re- Marriage- Ishwar Chandra Vidyasagar, Mahadev Ranade, and Dayanand Saraswati are the ones, who rendered a significant contribution in the reform
movement of widow remarriage. The efforts made by them resulted in the enactment of the Hindu Widow Remarriage Act XV of 1856.
4. Child marriage- Ishwarchandra Vidyasagar, Keshab Sen and Gandhi’s concerted effort – Child marriage restraint Act, 1929,
5. Right to Property- The Hindu Women’s Right to Property Act XVIII of 1937
Peary Charan Sarkar began the first school for the girls in 1847 in Calcutta. Many of the women social reformers such as, Jyotiba Phule & Pandita Ramabai began the
movement that put emphasis upon the freedom of women within the Indian society. Rani Lakshmibai fought for the independence of the country. But women were still
not regarded equal to men. No inheritance rights. (the Act of Sati (Abolish) 1829?)
(II) STATUS OF WOMEN: POST – INDEPENDENCE
The status of women in the post-independence period underwent transformations. The progression of the women’s movement was observed during the period of high
nationalism and struggle for independence. The constitutional guarantees of equal rights for women and universal adult suffrage in independent India. Important
contribution in social, political, cultural, economic and religious fields. Educational opportunities, access to technology, Employment opportunities.
Severe disciplinary action is been implemented and doers are subjected to stringent penalties. This is particularly with regards to minor girls and in order to enhance the
status of women and above all lead to progress and development of the community and nation. Women empowerment should be construed as the overall development of
their faculty of self-realization, self-image, recognition and economic development, which holds a key to their actual development
Constitutional Protection For Women
The preamble to the Constitution of India promises "to secure to all its citizens –
 Justice-social, economic and political;
 Liberty of thought, expression, belief, faith and worship;
 Equality of 'status and of opportunity' and to promote among them all;
 Fraternity - assuring the dignity of the individual and the unity of the nation".
To realize these goals, the Constitution guarantees certain fundamental rights and freedoms. The Directive Principles of State Policy, embodying the major goals of a
welfare State, also contain certain specific items affecting women. India has also ratified various international conventions and human rights instruments committing to
secure equal rights of women- the Convention on Elimination of All Forms of Discrimination against Women (CEDAW) in 1993.
With regard to the women, the Constitution contains many provision’s which go a long way in securing gender justice.
1. Article 14) Equality before law for women
2. Article 15 (i)) The State cannot discriminate against any citizen on grounds of religion, race, caste, sex, place of birth.
3. Article 15 (3) The State to make any special provision in favour of women and children.
4. Article 16 Equal opportunity for all citizens in matters relating to employment or appointment to any office under the State.
5. Article 39(a) The State to direct its policy towards securing for men and women equally the right to an adequate means of livelihood.
Article 39(d) Equal pay for equal work for both men and women
6. Article 39 A To promote justice, on a basis of equal opportunity and to provide free legal aid by suitable legislation or scheme or in any other way to
ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
7. Article 42 The State to make provision for securing just and humane conditions of work and for maternity relief.
8. Article 46 The State to promote with special care the educational and economic interests of the weaker sections of the people and to protect them
from social injustice and all forms of exploitation.
9. Article 47 The State to raise the level of nutrition and the standard of living of its people.
10. Article 51(A) (e) To promote harmony and the spirit of common brotherhood amongst all the people of India and to renounce practices derogatory to the
dignity of women.
 11. Article 243 D (3) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes)
of the total number of seats to be filled by direct election in every Panchayat to be reserved for women and such seats to be allotted by
rotation to different constituencies in a Panchayat.
Article 243 D (4) Not less than one- third of the total number of offices of Chairpersons in the Panchayats at each level to be reserved for women.

12. Article 243 T (3) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes)
of the total number of seats to be filled by direct election in every Municipality to be reserved for women and such seats to be allotted by
rotation to different constituencies in a Municipality.
Legal Provisions: To uphold the Constitutional mandate 'Crime against Women'. These are broadly classified under two categories.
(1) The Crimes Identified Under the Indian Penal Code (IPC) –
a. Rape (Sec. 376 IPC)
b. Kidnapping & Abduction for different purposes (Sec. 363-373)
c. Homicide for Dowry, Dowry Deaths or their attempts (Sec. 302/304-B IPC)
d. Torture, both mental and physical (Sec. 498-A IPC)
e. Molestation (Sec. 354 IPC)
f. Sexual Harassment (Sec. 509 IPC)
g. Importation of girls (up to 21 years of age)
(2) The Crimes identified under the Special and Local Laws (SLL). Although all laws are not gender specific, the provisions of law affecting women significantly
have been reviewed periodically and amendments carried out to keep pace with the emerging requirements. They are:
(a) The Employees State Insurance Act, 1948
(b) The Plantation Labour Act, 1951
(c) The Family Courts Act, 1954
(d) The Special Marriage Act, 1954
(e) The Hindu Marriage Act, 1955
(f) The Hindu Succession Act, 1956 with amendment in 2005
(g) Immoral Traffic (Prevention) Act, 1956
(h) The Maternity Benefit Act, 1961 (Amended in 1995), recently (2017)
(i) Dowry Prohibition Act, 1961
(j) The Medical Termination of Pregnancy Act, 1971
(k) The Contract Labour (Regulation and Abolition) Act, 1976
(l) The Equal Remuneration Act, 1976
(m) The Prohibition of Child Marriage Act, 2006
(n) The Criminal Law (Amendment) Act, 1983
(o) The Factories (Amendment) Act, 1986
(p) Indecent Representation of Women (Prohibition) Act, 1986
(q) Commission of Sati (Prevention) Act, 1987
(r) The Protection of Women from Domestic Violence Act, 2005
Problems of Working Women-
(a) Working Environmental Conditions;
(b) Unavailability of Technology, Materials and Infrastructure;
(c) Sexual Harassment within the Workplace;
(d) Terms and Relationships with Other Members;
(e) Unavailability of Equal Rights and Opportunities;
(f) Lack of Knowledge and Information;
(g) Creating a Balance between Personal and Professional Life;
(h) Lack of Promotional Opportunities.
8 IMP WOMEN CASES THAT CHANGED THE COURSE OF HISTORY
Maya Angelou, the famous American poet, had said, "Each time a woman stands for herself, she stands for all women.” The verdict in these eight cases, which were fought
to provide justice to one woman, continue to bring hope to several women facing circumstances that undermine their dignity and their fundamental right to equality.
(1) Vishaka Vs State of Rajasthan: Bhanwari Devi, a social worker from Rajasthan, was brutally gang-raped by five men for preventing a child marriage. Determined
to seek justice, she decided to go to court. In a shocking decision, the trial court acquitted all five accused. Vishaka, a Group for Women’s Education and Research,
took up the cause of Bhanwari Devi. It joined forces with four other women’s organisations, and filed a petition before the Supreme Court of India on the issue of
sexual harassment at the workplace. On August 13, 1997, the Supreme Court commissioned the Vishaka guidelines that defined sexual harassment and put the onus
on the employers to provide a safe working environment for women.
(2) Mary Roy Vs State of Kerala 1986: Women from the Syrian Christian community in Kerala were prevented from inheriting property due to patriarchal traditions.
This decree was challenged by Mary Roy, a woman's right activist and educator. After the demise of her father, she filed a case against her elder brother when she
was denied equal share in the family's inheritance. Though the plea was rejected by the lower court, the Kerala High Court overruled the previous judgment. In 1986,
the Supreme Court delivered a landmark judgment that granted Syrian Christian women the right to seek an equal share in their father's property.
(3) Lata Singh Vs State of Uttar Pradesh, 2004: Lata Singh was an adult when she left her family home to be joined in matrimony with a man from a lower caste. Her
brothers, who were unhappy with the alliance, filed a missing person report, and alleged Lata had been abducted. This resulted in the arrest of three people from her
husband's family. In order to get the charges dropped, Lata Singh filed a petition which resulted in the landmark judgment by the Supreme Court that allowed an
adult woman the right to marry or live with anyone of her choice. The Court further ordered that the police initiate criminal action against people who commit violence
against those who decide on inter-religious or inter-caste marriages.
(4) Roxann Sharma Vs Arun Sharma, 2015: Roxann was involved in a bitter child custody battle with her estranged husband. A court in Goa granted her interim
custody of their child, but Arun Sharma whisked their son away and refused to let Roxann meet the child. She filed a case against him, which led to the landmark
judgment pronounced by the apex court regarding children caught in a legal battle between parents. The Supreme Court ruled that when estranged parents are involved
in a legal tussle over the custody of a child who is under the age of five years, the custody of the child will remain with the mother.
(5) Tamil Nadu Vs Suhas Katti: This case led to the first conviction under the Information Technology Act, 2000. The victim was being harassed by the accused, Suhas
Katti, when she refused to marry him. He would send defamatory and obscene messages to her online in a Yahoo message group. To add to her agony, she began to
receive phone calls from unknown people soliciting sex work. The victim filed a complaint in February 2004, and within seven months the accused was convicted.
In an age of merciless trolls and other forms of online harassment, this judgment acts as a tool that woman can use to safeguard their dignity.
(6) Laxmi Vs Union Of India, 2015: In 2006, Laxmi, an acid attack victim, filed a petition seeking measures to regulate the sale of acid and provide adequate
compensation to the victim. Taking cognizance of the number of cases relating to acid attacks against women on the rise, the Supreme Court imposed stringent
regulations on the sale of acid in 2013. The ruling banned over the counter sale of acid. Dealers can sell the acid only if the buyer provides a valid identity proof and
states the need for the purchase. It is mandatory for the dealer to submit the details of the sale within three days to the police. It also made it illegal to sell acid to a
person below 18 years.
(7) Centre for enquiry into Health and Allied themes (CEHAT) Vs Union of India, 2003: With the advent of pre-natal diagnostic techniques that could determine
the sex of a fetus, the growing trend of aborting female fetuses was observed. In a bid to curtail female foeticide, the government of India issued the PNDT Act in
1996. However, the provisions of the PNDT Act were not being effectively implemented by the state and central government. The Centre for Enquiry into Health
and Allied themes filed a petition which led to the Supreme court directing the Central and State governments to enact the provisions of the act immediately, and
banned all advertisements relating to pre-natal sex determination techniques.
(8) Ms Z V state of Bihar & others, 2017: The petitioner, a rape survivor, who wished to remain unidentified, approached the Supreme Court seeking permission to
abort her 24-week abnormal fetus. The petition challenged the 46-year-old Maternal Termination of Pregnancy Act that does not permit abortion of a fetus after 20
weeks. The Supreme Court ruled in favour of the petitioner after the medical board submitted a report stating that continuing with the pregnancy would put the
mother's life at risk.
 Nature, Theories & Causes of Female Crimes
According to Role theory, girls are usually trained to be passive, domesticated and non-violent and are not allowed to learn how to fight. Girls thus shrink from violence
and do not possess the necessary technical ability or strength to engage in crimes of violence, armed robberies, gang fights, etc. So, it is observed that different
expectations of standard behaviour appear to be important in the genesis of women’s crime.
(I) Nature of Involvement: Involvement in this context means that women either commit crime as an accomplice, which is the case maximum number of times, or singly
as a main culprit. The members of the family or paramour or friend are the ones for whom the women act as accomplices.
(A) Property Offences: Most women are involved in property offences. It includes theft, pick-pocketing, purse-chain snatching, shop-lifting and cheating. When a
woman participates in cheating, she mostly plays the role of an accomplice and assists the male offenders.
According to Pollak’s (Poliak Otto - “The Criminality of Women”, p.36.) conventional roles like managing household affairs or role of purchaser wherein they carry
shopping bags and big purses, there’s a possibility of getting tempted and finding ready opportunity to steal goods. Maid servants, observe things / articles in their
day-to-day life, temptation rises and they get involved in criminal activity of stealing.
Lombroso (‘The Female Offender”, p.207-208.) and Pollak have expressed that shop-lifting is a specifically feminine offence and this is partly due to temptation.
Lombroso and Smith (“Women in Prison: A study in Penal Methods”, p.31) observed that domestic work provides good opportunities for women to indulge in
theft.
(B) Offences Against Person: It includes murders, kidnapping and assistance in raping. While committing murders women concentrate mostly on persons who lived
close to them. Kidnapping is very less, mostly selling to brothels.
Ahuja Ram (“Female Offenders in India”, p.32) and Pollock (“The Criminality of Women”, p.8-14.) found cases where the victim was a member of the female
criminal’s family. This proves the validity of stressful situations within the family which plays an important role in female criminality.
The victim-offender relationship is more meaningful in female homicide because the social environment of Indian woman is very limited. Sometimes, homicide
occurs as the only way out of a hopeless situation that a woman is facing, very few commit an offence independently. Most of them play the role of accomplice but
are actively involved in offence. Some are involved incidentally.
(C) Other Offences: It includes Immoral Traffic Act, NDPS Act and Pass Port Act. In this type of crime an individual violates the Rules of conduct in society. Most of
the women accept this disapproved business as main or subsidiary source of income. They do it either independently or with the assistance of their family members,
friends or neighbours or play the role of accomplice. They carry out the business in their homes or near their residential area whereas. for Pass Port Act women
migrate especially from Bangladesh with an economic motive.
(II) Nature Of Criminality: There are three categories-
 The first offenders,
 Occasional;
 Habitual.
(III) Nature Of Offence:
 Education: Generally, it is found that illiterate people are least logical and rational and their criminal instincts are not properly socialized.
 Religion: Religion is the most influential force in controlling human behaviour. It may also provide clues to the understanding of varying incidence of crime rate among
different sections of the community.
 Caste: Caste determines the social status of a person in the society. It is generally seen that upper caste women are more involved in offences against the person.
Scheduled Castes, Scheduled Tribes and N.T./D.T. (Nomadic Tribes /De-notified Tribes) women are more involved in property offences. Other backward classes
(O.B.C.) women are more involved in other offences.
 Marital Status: Most crimes are related to the marital status of a person. Responsibilities and socio-cultural expectations are always attached to marital status. If they
cannot be fulfilled within the framework of socially and culturally approved ways, a woman tends to participate in criminal activities. Married and widowed/deserted
respondents are involved mostly in offences against the person. The unmarried respondents show a greater involvement in property and other offences.
 Occupation: Housewives are involved predominantly in offences against the person. Those who were in service, business or working as domestic servants get involved
considerably in property offences.
 Income: Income gives an insight into the economic status of the family and it is also instrumental in the formation of the behaviour of female criminals in the society.
 Family: Nuclear families, majority of them are involved in property offences. In case of respondents in joint family’s majority were involved more in offences against
the person.
(IV) Theories Of Women Criminality:
(A) Masculinization Theory- Freda Adler: ‘Sister in Crime: The Rise of the New Female Criminals (1975).
Premise- Criminalities of women are mainly depended on the masculinity behavior of female. The empowered women are involved in more serious violent crimes
than non-empowered women due to the masculinity.
Strength- Able to Explain The Involvement Of Women In Property Crime.
Weakness- This theory is criticized by feminist scholars because of the male centeredness ideology. It cannot explain the criminality of women in third world
societies.
(B) Opportunity Theory- Rita J. Simon: Women and Society (1976)
Premise-The involvement of criminal activities is increased when women have different opportunities. Increasing opportunities of women reduced the rates of
violent female offending, but increased the rates of property crimes.
Strength- Able to explain multiple nature of female criminality.
Weakness- Data do not support the hypothesis of opportunities theories in relations to region, class and employment.
(C) Marginalization theory: Meda-Chesney Lind: Women and Crime: The Female Offender (1986)
Premise – Marginality (low salary; inadequate job; lower class position; family victimization) of a woman penetrates criminality in contemporary societies.
Victimization of women instigates themselves to commit crime.
Strength – Basically, marginality theory is based on facts and huge data. It is more reliable and valid than the others.
Weakness- It is unable to explain the nature of white collar and corporate criminality by the upper-class women (ICICI Chanda Kocher).
(D) Chivalry or Paternalism theory- Thomas: Sex and Society (1907); Otto Pollack: The Criminality of Women (1950)
Premise – Lower rates of female criminality exist because of the more lenient treatment of female offenders by criminal justice personnel. Men commits certain
crime with the instigation of women.
Strength – Can explain the role of criminal justice system in explaining female criminality.
Weakness – Chivalry is myth and hidden discourse.
(V) Causes Of Female Criminality:
(A) Biological View Point –
 Caesar Lombroso's contribution is considered as the foundation of scientific study on female crime. He viewed, "female deviance as rooted in the biological make
up or as inherent feature of the female species". He stated that female criminals are more terrible than the male criminals because cruelty by a female was much more
refined and diabolic than men. Lombroso & Ferrero, (1895) (The Female Offender): thought women shared many qualities with children and they were morally
deficient and their lack of intelligence was the reason of their relatively small participation in crime. However, Indian women are inclined to crime more because
of social or economic deprivation than being biological throwbacks.
 Pollak (The Criminality of Women) (1950): elucidated the influence of hormonal changes over menstruation, pregnancy and menopausal stage. He stated that in
the pregnancy and menopausal phase, the psychological characteristics such as emotional changes of moods, abnormal craving and impulses.
All the biological theories depict crime as an inherent human trait. in the present age of information technology and impersonal relations, such basic theories
seem to be unreasonable and unscientific and especially for India it is not applicable.
(B) Psychological Viewpoint – Women who are not passive and content with their traditional roles as mothers and wives are maladjusted. Maladjusted women refuse or
fail to internalize the values associated with the role in the society. Stress, harsh living conditions, unfortunate incidents, (Phoolan Devi, victimized became victimizer),
bottled up anger and feelings, explode with episodes of extreme uncontrolled violence.
Psychological viewpoint is applicable to Indian scenario as there are several crimes committed because of depression and frustration.
(C) Sociological Viewpoint – Women in India face inequality in every phase of life. Women miss most of the opportunities in life which in turn affect their financial
independence and thus her economic status is lowered. This unequal position of women in society due to social oppression and economic dependency on men.
Based on Klein’s (1973) (The etiology of female crime: A review of the literature) works, in Indian context- Poisoning a child or an adult at home, sexual crimes,
shoplifting and other thefts, abortions, may not be only physiological or psychological but socio economic too.
Adler (1975) (Sisters in Crime: The Rise of the New Female Criminal) studied prostitution, drug addiction, and juvenile law-breaking among females and she has
credited these crimes to the liberation movement of women and women's assertiveness. However, in Indian context, more restrains are resulting in bigger crimes.
Sharma (1963) (Crime and Women: A Psycho-Diagnostic Study of Female Criminality) summarized among Indian women, strained interpersonal relations with
husband and other family members, husband's extra-family relations, deprivation and denial of basic needs of life (like affection, security, etc.) were the main causes
of frustrations and ultimate crimes. Writers like Bilmoria (1987) (A Socio-Demographic Study of Women Prisoners) and Kuckreja (1986) (A Socio-Demographic
Study of Women Prisoners.) have also supported Sharma’s theory of ‘family maladjustment’ and role conflict in family as reasons for female criminality. Role of
family in female criminality is proven fact.
(VI) Prevention:
(A) Preventive Measures –
(a) General awareness of the role of woman in a society, her rights and laws for them should be briefed to the uneducated women.
(b) Legal awareness and awareness about illegal activities and to report or keep themselves away from illegal activities should be provided by social service/ adult
education units.
 (c) Sex education plays an important role wherein the women indulge in crime following lack of awareness regarding sex-rackets and flesh trade. And also need to be
informed about the harsher laws against being a part of such crimes.
(d) Constructive social action movement to spread awareness is important.
(e) In order to reduce tensions in the family or society it is advisable for couples and families to undergo Pre-marital and post-marital counseling. It is necessary to
treat domestic violence cases harshly to avoid future crimes and laws against dowry must be implemented properly.
(B) Corrective Measures –
(a) Female criminals should be given a chance to rectify or correct their ways and emerge as a lady with no criminal attributes, well informed and more aware
(b) Most women are deprived of their liberty and do crimes to break off the chains of cruel traditions. Such women should be given enough support and help to be
independent and do something worthwhile for herself, her family and her kids.
(c) In prisons, women are engaged in various activities like cooking, tailoring, gardening, painting, handicrafts etc. which is a positive initiative and helps a lot to
improve their self-respect and confidence.
(d) Proper public awareness is also a need as a criminal returning to her society is not accepted and is taunted by everyone. This might result in her ending up committing
other harsher crimes. People need to be made aware of the rights of a reformed criminal as they too have the right to continue with their life as before.
(C) Rehabilitative and Supportive Measures –
(a) Under rehabilitative and supportive measures, a female criminal should be given a chance to fulfill her parental responsibilities.
(b) Attention should be paid on providing female prisoner with proper medical aid and even on rehabilitation.
(c) Caretaking of children of imprisoned mothers should be done or they should be allowed to be in touch with their kids and relatives.
(d) Access to legal advice should be provided as most of the women come to prison for no mistake of their own.
 The Immoral Traffic (Prevention) Act, 1956
The Parliament of India enacted the Suppression of Immoral Traffic in Women and Children Act, 1956 (herein referred as SITA), as India was signatory to the United
Nations International Convention for the “Suppression of Traffic in Persons and of the Exploitation of Others” of 1950. The SITA was amended twice in 1978 and in
1986. The 1978 amendment enhanced the punishments for certain offences in the Act. The 1986 amendment changed the name of the Act as “The Immoral Traffic
(Prevention) Act, 1956” (herein referred as ITPA). This amendment has also changed the definition of ‘prostitution’ and enhanced punishment for a set of offences further.
The amendment made the law gender neutral and recognised the existence of male prostitution and trafficking in male child. Except for these, the ITPA does not diverge
from the basic scheme of the SITA. There is a continuum in the implementation and interpretation of these two laws. As there are marginal differences between them.
Nothing in this Act shall be construed to be in derogation of the provisions of the Reformatory Schools Act, 1897 (8 of 1897), or any State Act enacted in modification
of the said Act or otherwise, relating to juvenile offenders. (Section 24).
No court, inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence u/s 3 to 8. (S. 22)
Section 2 –
(a) “brothel” includes any house, room, conveyance or place or any portion of any house, room, conveyance or place, which is used for purposes of sexual exploitation
or abuse for the gain of another person or for the mutual gain of two or more prostitutes;
(aa) “child” means a person who has not completed the age of sixteen years;
(ca) “major” means a person who has completed the age of eighteen years;
(cb) “minor” means a person who has completed the age of sixteen years but has not completed the age of eighteen years;
(f) “Prostitution” as “the sexual exploitation or abuse of persons for commercial purposes”.
The ITPA is concerned with at least six different categories of people who are in some ways connected with prostitution. Each category is treated differently, subjected
to different legal processes and punishments. The six categories addressed by the law include:
(i) The procurer/seducer.
(ii) The brothel keeper/ manager or his/ her assistant.
(iii) Any person who allows or lets premises to be used for prostitution.
(iv) Any person who lives on the earnings of a prostitute.
(v) The prostitute.
(vi) The children of prostitutes.
Section 4: Punishment for living on the earnings of prostitution—
Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution shall be punishable with imprisonment for a term
which may extend to 2 years, or with fine which may extend to Rs.1,000, or with both and where such earnings relate to the prostitution of a child or a minor, shall be
punishable with imprisonment for a term of not less than 7 years and not more than 10 years.
Where any person over the age of eighteen years is proved— (a) to be living with, or to be habitually in the company of, a prostitute; or (b) to have exercised control,
direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding, abetting or compelling her prostitution; or (c) to be acting
as a tout or pimp on behalf of a prostitute, it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another
person.
Section 5: Procuring, inducing or taking person for the sake of prostitution Any person who—
(a) procures or attempts to procure a person, whether with or without his consent, for the purpose of prostitution; or
(b) induces a person to go from any place, with the intent that he may for the purpose of prostitution; or
(c) takes/ attempts/ causes a person to be taken, from one place to another with the intention to carrying on or being brought up to carry on prostitution; or
(d) causes or induces a person to carry on prostitution;
shall be punishable on conviction with rigorous imprisonment for a term of 3 to 7 years and also with fine which may extend to Rs.2,000 and if any offence under this
sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen
years:
Provided that if the person in respect of whom an offence committed under this sub-section –
(i) is a child, the punishment shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and
(ii) is a minor, the punishment shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years;
Section 6: Detaining a person in premises where prostitution is carried on—
Any person who detains any other person, whether with or without his consent—
(a) in any brothel, or
(b) in or upon any premises with intent that such person may have sexual intercourse with a person who is not the spouse of such person;
shall be punishable on conviction, with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term
which may extend to ten years and shall also be liable to fine:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
Where any person is found with a child in a brothel, it shall be presumed, unless the contrary is proved, that he has committed an offence.
Where a child or minor found in a brothel, is, on medical examination, detected to have been sexually abused, it shall be presumed, unless the contrary is proved, that the
child or minor has been detained for purposes of prostitution or, as the case may be, has been sexually exploited for commercial purposes.
Section 7: Anyone who carries on prostitution within close proximity to a public place, including a hospital, nursing home, place of religious worship, hostel, educational
institution, or in an area notified under the provisions of the Act, can be punished with imprisonment for a term of three months. This provision also applies to the
client of the prostitute. If the prostitute is a child or minor, then the client can be punished with a term of imprisonment for seven years or more and liable to pay
fine.
Section 8: Whoever, in any public place or within sight of, and in such manner as to be seen or heard from any public place, whether from within any building or house
or not— (a) by words, gestures, wilful exposure of her person (whether by sitting by a window or on the balcony of a building or house or in any other way), or otherwise
tempts or endeavours to tempt, or attracts or endeavours to attract the attention of, any person for the purpose of prostitution; or (b) solicits or molests any person, or
loiters or acts in such manner as to cause obstruction or annoyance to persons residing nearby or passing by such public place or to offend against public decency, for the
purpose of prostitution, shall be punishable on first conviction with imprisonment for a term which may extend to six months, or with fine which may extend to five
hundred rupees, or with both, and in the event of a second or subsequent conviction, with imprisonment for a term which may extend to one year, and also with fine which
may extend to five hundred rupees: Provided that where an offence under this section is committed by a man, he shall be punishable with imprisonment for a period of
not less than seven days but which may extend to three months.
Case: In 1986, the Andhra Pradesh High Court held that what is punishable u/s 8 is not the actual sexual act, between the woman or the girl soliciting for the purpose of
prostitution and the man who responds to the words or gestures or exposure of the female partner, but that it is only where a woman or a girl solicits for the purpose of
prostitution is punishable. The court observed that Section 8 does not therefore suffer from the vice of discrimination prohibited under Article 14 of the Constitution.
Similar view is also given in Shanta v State, 1967.
Section 9: Any person who having the custody, charge or care of, or a position of authority over, any person, causes or aids or abets the seduction for prostitution of that
person, shall be punishable on conviction with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a
term which may extend to ten years and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose
a sentence of imprisonment for a term of less than seven years.
Section 15: Whenever the special police officer or the trafficking police officer, has reasonable grounds for believing that an offence punishable under this Act has been
or is being committed in respect of a person living in any premises, and that search of the premises with warrant cannot be made without undue delay, such officer may,
after recording the grounds of his belief, enter and search such premises without a warrant.
But, before making a search, that Officer, shall call upon two or more respectable inhabitants (at least one of whom shall be a woman) of the locality in which the place
to be searched is situate, to attend and witness the search, and may issue an order in writing to them or any of them so to do.
Case:
In Kamala Bai v State of Maharashtra 1962 Supp (2) SCR 632 the police, in order to apprehend some prostitutes in a brothel house, had engaged an elderly man to go
to the house and commit prostitution and had deputed a student of rather under age to be a witness to the act. Strongly disapproving the procedure Justice observed;
“What is more reprehensible and a matter of greater concern is the sending.. .(of) a young student who was reading for his matriculation. To use students in this manner
should not be allowed by any government authority in a country like ours. It is no justification to say that in order to suppress immoral traffic in women and to stop
prostitution somebody has to be used and the only class of people that can be employed are persons like (one) who is confessedly a police agent and (other) who is a
young man willing to be employed by the police.”
In State v Gaya AIR 1960 Bom 289, the police in order to trap the persons running a brothel sent its man to conduct those persons as their customer. The man not only
feigned a bargain but also had on payment sexual intercourse with one of the women of the house. The police entrapped all the occupants of the house immediately after
the intercourse and recovered the money as a proof of the affair. While convicting the ‘keeper’ of the house, the Court commented:
“If investigation under this Act is proceeded in this manner, in conceivable cases it will be difficult to determine whether a person was committing an offence under the
Act or carrying on an investigation. Such investigation also will not have any salubrious effect upon the public mind and will not achieve the object for which the Act
was passed.”
In Re Ratnamala & another AIR 1962 Mad 31 is another laudable judgment of Madras High Court. In this case, the police employed a decoy in disguise of a customer,
who went to a brothel in Madras and had sexual intercourse with a prostitute. The rest of the police team and two witnesses barged into the room and arrested the prostitute,
the pimps and the brothel keeper. All this was done in order to prove that the woman, was a prostitute and the house, a brothel. The judge condemned this method of
investigation by the police. The judge held that the action of the police barging into the bedroom, without even a knock, was tantamount to outraging the modesty of a
woman and stated: “I must reiterate that the modesty of a prostitute is entitled to equal protection with that of any other woman.
 Justice Ananthanarayana acquitted the prostituted woman, by holding: “the purpose of the SITA is to inhibit or abolish the commercialised vice, namely, the traffic in
women and girls for purpose of prostitution as an organised means of living. The idea was not to render prostitution per se a criminal offence or to punish a woman merely
because she prostitutes herself.
Section 17A: The magistrate must satisfy himself about the capacity or genuineness of the parents, guardian or husband to keep such person by causing an investigation
to be made by a recognised welfare institution or organisation, before passing an order for handing over any person rescued under section 16, to the parents, guardian or
husband.
Section 18: A magistrate may, on receipt of information from the police or otherwise, that any house, room, place or any portion thereof within a distance of two hundred
metres of any public place, is being run or used as a brothel by any person or is being used by prostitutes for carrying on their trade, issue notice on the owner of such
place to show cause within seven days of the receipt of the notice why the same should not be attached for improper user thereof; and if, after hearing the person concerned,
the magistrate is satisfied that the house, room, place or portion is being used as a brothel or for carrying on prostitution, then the magistrate may pass orders, directing
eviction of the occupier within seven days of the passing of the order from the house, room, place or portion;
Provided, if the magistrate finds that the owner/ user of such place, was innocent, he may cause the same to be restored to the owner/ user of such place.
Section 19: A person who is carrying on, or is being made to carry on, prostitution, may make an application, to the magistrate within the local limits of whose jurisdiction
he is carrying on, or is being made to carry on prostitution, for an order that he may be— (a) kept in a protective home, or (b) provided care and protection by the court.
The magistrate may, direct that the person be kept in such custody as he may consider proper, having regard to the circumstances of the case.
Section 20: A magistrate on receiving information that any person residing in or frequenting any place within the local limits of his jurisdiction, is a prostitute, may record
the substance of the information received and issue a notice to such person requiring him to appear before the magistrate and show cause why he should not be required
to remove himself from the place and be prohibited from re-entering it.
The magistrate shall, after the service of the notice, proceed to inquire into the truth of the information received, and after giving the person an opportunity of adducing
evidence, take such further evidence as he thinks fit, and if upon such inquiry it appears to him that such person is a prostitute and that it is necessary in the interests of
the general public that such person should be required to remove himself therefrom and be prohibited form re-entering the same, the magistrate shall, by order in writing
communicated to the person therein, which shall not be less than seven days from the date of the order, to remove himself from the place to such place whether within or
without the local limits of his jurisdiction.
Whoever, fails to comply with an order issued under this section, shall be punishable with fine which may extend to Rs. 200 and in the case of continuing offence - an
additional fine which may extend to Rs. 20 for every day after the first during which he has persisted in the offence.
Case: In Smt Shama Bai v State of Uttar Pradesh AIR 1959 – the woman in prostitution challenged the constitutional validity of Section 20. She argued that prostitution
was her hereditary trade, that it was her only means of livelihood and that of members of her family and the rights guaranteed in Art 14 and 19(1) (g) were violated. This
is a very interesting case. The Court held that prostitute women were subjected to punitive form of surveillance to which other women were not, and that this differential
treatment constituted discrimination between persons who were similarly situated. This decision was progressive in many respects as the Court was prepared to consider
the work of prostitute women as a trade and not as a crime. The Court further made obiter observation that upon an examination it was clear that although there might be
some substance in the complaint as to the unconstitutionality of Sections 20 and 4(2), not unreasonable and that as Sections 20 and 4(2) could be severed from the rest of
the act, the entire Act did not fall because these two Sections may be unconstitutional.
In Kainala China v State, 1963 the Punjab High Court held that Section 20 does not offend Article 14 or Article 19 (1) (d), (e) and (g) of the Constitution. A reference
to the provisions of the section shows that the interest of general public is not to be determined on any conjectural or arbitrary grounds. The magistrate has not been given
any unrestricted powers. In each case he is to examine the evidence and has to come to a conclusion that the removal or extemment of a particular prostitute from a
particular locality was in the interest of general public. The expression ‘necessary in the interest of general public’ could not be held to be vague, uncertain and elusive.
The right to movement or right to reside and settle is not restricted or interfered with under the section, but reasonable restrictions within the meaning of clause (5) and
(6) of Article 19 are placed to channelize the same and that too in the interest of the general public.
Similar view is also given in the State of Uttar Pradesh v Kaushailya, 1964
In Begum v. State, 1963 the Punjab High Court struck down some aspects of Section 20 as they offend Art 19(l)(d) and (e). The Court held that the Magistrate
unreasonably encroached upon the fundamental rights guaranteed by Article 19(l)(d) and (e.)
How the ITPA provisions operate against the women in prostitution
 The popular perception is that prostitution is a ‘necessary evil’, which provides an easy outlet for the supposedly uncontrollable male sexuality. So while it is tolerated,
the rest of society needs to be protected from these evil women. So prostitution needs to be contained within certain areas of the city. By an extension of this logic the
ITPA prohibits a prostitute from public places and forces her to work only in certain areas. This causes the women in prostitution to be confined to a ‘ghetto’- like, area.
 By penalizing her, the Act subjects her to further exploitation and forces her to live like a criminal in constant fear of police harassment.
 Section 8 can be misused by the police to put any woman behind bars. Any person can say that a woman was soliciting with her eyes and that a price was settled and
she assured him complete pleasure etc.
 A female offender found guilty of an offence u/s 7 and 8 can, in lieu of a sentence of imprisonment, be placed in a corrective institution instead of in a prison.
 Though the statute is not intended to criminalise prostitution or the women who engage in prostitution, Sections 7, 8 and 20 penalise the women in prostitution for
soliciting or for practicing prostitution. What is not explained in the Act, is the logic behind handing out of a stricter sentence to the woman for soliciting as distinct
from the man.
 Further, Section 10A, which provides for detention in a corrective institution is only applicable to female offenders and not male offenders.
 The ITPA operates against a woman by targeting her family. If a child is found with a woman in prostitution, he or she is presumed to have been used for the purposes
of prostitution. Her child can be arbitrarily removed from her custody during ‘rescue’ operations. If her partner, parent or adult child is dependent on her income for
survival, then they will be deemed to be living off the earnings of a prostitute and liable to prosecution. Perhaps the most pernicious provision of the Act is Section 20
under which any woman can be forced to prove that she is not a prostitute or risk being removed from the jurisdiction. Nor is there any restriction on the number of
times a woman can be removed from one jurisdiction to the next.
 In 1936, the Allahabad High Court rendered a positive judgment and held that if a married woman carries on prostitution not in a brothel, or for the benefit of another,
it was not an offence. The Court held that an order of a magistrate of her detention in a protective home is without jurisdiction.
 The Madras High Court in Re Ratnamala AIR 1962 Mad 31 also passed a similar judgment. The Court held that the idea is not to render prostitution per se a criminal
offence or to punish a woman merely because she prostitutes herself as is clearly indicated by the last part of the definition of ‘brothel’ u/s 2(a) of the Act, which implies
that where a single woman practices prostitution for her own livelihood, without another prostitute, or some other person being involved in the maintenance of such
premises, her residence will not amount to a ‘brothel’.
 In Vishal Jeet v Union of India (1990) 3 (SCC) 318 the Supreme Court on a PIL, issued an order that the Central and State governments should set up Advisory
Committees to make suggestions for:
(i) Measures to be taken in eradicating child prostitution.
(ii) The social welfare programme to be implemented for the care, protection, treatment, development and rehabilitation of the young fallen victims and mainly children
and girls rescued either from the brothel houses or from the vices of prostitution;
(iii) To make suggestions of amendments to existing laws or for enactment of any new law, if so warranted, for the prevention of sexual exploitation for children;
(iv) To examine the devadasi and jogini traditions and give suggestions for then- welfare and rehabilitation.
(v) Devising suitable machinery for implementing the suggestions made by the Committee.
 In Gaurav Jain v Union of India AIR 1990 SC 292 the Apex Court again issued an order directing, inter alia, the constituting of a Committee to make an in-depth
study of the problems of prostitution, child prostitutes and children of prostitutes and to evolve suitable schemes for their rescue and rehabilitation.
 The Dowry Prohibition Act, 1961
This legislation is half-hearted attempt to check dowry system failed mainly because of the poor public support behind this legislation. It defines the term ‘Dowry’ very
loosely and prescribes minimal punishment for violations. Section 6 says dowry will be for benefit of the wife or her heirs; the rules require a list of gifts to be maintained
by the bride and the groom. Doesn’t this tantamount to legitimization of dowry?
Appointment and working of Dowry Prohibition officers under Section 8-B also leaves much to be desired. Some States have appointed social workers while some have
designated the SDM’s as Dowry prohibition officers. People are not aware of their existence and most of the times the Officers are also clueless about their functions
which have been vaguely defined under the law.
Section 2 defines, “Dowry”, as any property or valuable security given or agreed to be given, directly or indirectly:
(a) by one party to the marriage to the other party to marriage, or
(b) by parents of either party to the marriage, or by any other person to either party to the marriage or to any other person at or before or at any time, after the marriage
“in connection with the marriage of said parties”.
In Pawan Kumar v. State of Haryana (1998), it was held that agreement is not always necessary. Persistent demand for T.V. and scooter were held to be demand in
connection with marriage, hence such demand would fall within the definition of dowry.
In Kamdeo Mehto v. State of Bihar [Now Jharkhand] 2006, it has been held, that accused demanding service from in-laws- whether demand of service amounts to demand
of dowry (yes)- Service is a property and would come within definition of dowry.
Section 3: Taking or giving of dowry or abetting to give dowry or abetting to take dowry continue to be offences.
Section 4: Similarly, demanding of dowry by any person, directly or indirectly from parents or guardian of bride or bridegroom is also a dowry offence.
Under the original Act the punishment for these offences was mild, the maximum punishment was six month’s imprisonment, or a fine which could not be beyond a sum
of Rs. 5,000, both the punishments could also be awarded.
The Amending Act of 1986 provides a punishment which shall not be less than five years imprisonment with Section 3. Section 4. fine which shall not be less than
Rs.15,000 or the amount of the value of such dowry whichever is more. In awarding smaller punishment the court is required to record in writing the adequate and special
reasons for doing so.
SECTION 6: states that the dowry has to be transferred to the bride.
(1) When any person has received dowry at, before, or after the marriage, he must transfer the same to the bride within three months of its receipt. If dowry was received
when the bride was a minor then it must be transferred to her within three months of her attaining majority. Pending such transfer, he would hold the dowry as a
trustee for the benefit of the bride.
(2) The failure to transfer the dowry to the bride within the stipulated period constitutes a dowry offence, for which the offender is liable to be awarded the same
punishment as the taker of dowry, and in his case the court has no discretion to reduce the punishment below the minimum under any circumstances whatsoever. This
punishment will be in addition to the one which may be awarded to him as taker of dowry, since both are separate offences.
(3) If the bride dies before the transfer of dowry is effected, her heirs will be entitled to it. If the woman dies within the 7 years of her marriage, the property will go to
her children, and, in their absence, to her parents.
(3A) Further, offender should not be entitled to keep the fruit of his offence. To meet this situation, the Act provides that the court will make an order directing the offender
to transfer the dowry to the bride, or her heirs, as the case may be, within the time specified in the order.
POSITION AFTER THE DOWRY PROHIBITION (AMENDMENT) ACT, 1984 AND 1986
 The main objective of the amended Act was to plug certain crucial loopholes in the dowry provisions with a view to making it more workable, stringent and acceptable.
The 1984 Act begins by making an alteration in the definition of dowry under Section 2 of the original Act. It substitutes the words ‘as consideration for the 'marriage
of the said parties’ by ‘in connection with the marriage of the said parties.’
 The Committee in its report strongly opined that only the taker and not the giver of dowry should be treated as an offender under the Act. as the giver is more of a
victim than an offender. Though there is much substance in the observation, yet the amendment brings no change in this respect and status quo remains. It is indeed
a unique law which considers both the committer of the act as well as the person against whom the act is committed as offenders.
 The penalties u/s 3 and 4 for giving, taking and demanding of dowry have been made more stringent. Any person who gives, takes, abets or demand dowry would
now be punishable with imprisonment for a term which would not be less than six months extendible up to two years and a fine which may be extended up to Rs.
10,000/- or the amount of the value of such dowry, whichever is more. Another important change has been to do away with the provision to Section 4
 Section 6 has been amended to reduce the time period for the return of dowry from the person holding it to the bride from one year to three months. The Section
further enhances the punishment for the violation of the said provisions by an imprisonment of not less than six months and a fine extending up to Rs. 10,000/- or
both.
 An amendment to Section 7 now allowed the court to take cognizance of an offence under the Act either on its own knowledge or on a police report. A further change
includes recognized welfare organisation as a competent body to file a complaint on behalf of the victim. The stipulated period of one year within which a complaint
could be preferred has been done away.
 An amendment to Section 8 makes a dowry offence cognizable only for the selective purpose of investigation.
1986 AMENDMENT
 The 1986 amended Act begins by further substituting the words ‘any time after the marriage’ instead of ‘after the marriage’ in Section 2 of the Act, to ensure that
anything given anytime after marriage by the bride’s side would constitute dowry. It succeeded in achieving the desired effect of further broadening the scope of
dowry offences. The penal provisions were made more strict with a further enhancement in the period of imprisonment up to five years and a fine not less than Rs.
15,000/- It was agreed that enhanced punishment would act as an effective deterrent in committing a dowry offence. A new Section 4A was added which provided
for stringent punishment for any person who offered his money or property or both through advertisement in any newspaper, periodical or journal as consideration
for the marriage of his son, daughter or any relative
 Amendment to Section 6 made punishment more stringent with a view to ensure speedy and quick implementation of the transfer of dowry to the wife.
 A new proviso ensured that where a woman died before receiving her dowry, the dowry would pass on to ‘her heirs’, the phrase ‘her heirs’ now being substituted by
‘her heirs, parents or children’. The whole exercise was undertaken to ensure that dowry should, in no possible manner, pass into the hands of the husband and his
family making them unjust gainers.
 A significant addition in the form of a sub-Section 2 to Section 7 was made, exempting the statement made by an aggrieved party from prosecution.
 Dowry offences have eventually been made non-bailable under Section 8 of the 1986 Act. Two new sub-Sections 8A and 8B have been added, the first stating
that the burden of proving that a dowry offence was not committed by him, would be on the person who was being prosecuted.
 The other Section made provision for the appointment and powers of Dowry Prohibition Officers.
 The Dowry Prohibition Act gives jurisdiction to try dowry offences only on the Metropolitan Magistrate or the Magistrate of the First Class.
GENERAL ALLEGATIONS IN DOWRY DEATH
In State of Karnataka v. Hanumanthagowda, 1997: The Court, pointed out that the allegations were generalised and at no stage had the prosecution taken the trouble to
indicate as to whether all the accused at all times were alleged to have been acting in furtherance of their common intention or abetting each other or whether the overt
acts that were alleged were against individual accused. This aspect of the matter is of considerable significance particularly in a situation where four accused are facing
serious charges. The highest that could be said was that there was a general allegation against the accused who were the in-laws of the girl were responsible for what had
happened. This may not be sufficient to establish either the charges of common intention or abetment. It is necessary, within the ambit of criminal jurisprudence, to
specifically allege an aspect of meeting of minds or abetment or assistance of each other in the commission of the offence.
In M. M. Mohanrao v. State of A.P., 2006, it has been held that since, there is no specific evidence about the part played by other accused and except making bald
allegations that they are also demanding for dowry in the shape of landed property and there is nothing on record. Therefore, they are entitled for benefit of doubt.
HARASSMENT FOR DOWRY
What amounts to harassment of the wife in connection with the demand of dowry is well illustrated by Orissa High Court in Sahnani v. Puma Chandra Sahod, bride
Kamini brought with her gold and silver ornaments and other articles including household goods and utensils. All the articles, goods and ornaments were kept by the
husband in his custody with the exception of some ornaments which were on her person. As it happens in such cases, the lust for dowry of the husband and her in-laws
remained unsatisfied and demands for dowry were made, and when they were not met, the harassment and ill-treatment reached to such a stage that the wife felt that it
was no longer safe to continue to live in the matrimonial home. She informed her father requesting him to rescue her. The wife's father, wrote to her father in law that he
would like his daughter to come to his house. This was readily agreed upon by the father-in-law on two conditions: (a) wife should sign a divorce-deed, and (b) he should
be paid 20,000 representing the amount that he had spent in the marriage. Finding both the conditions’ unreasonable, the father rejected them with the result that, the wife
continued to live in the matrimonial home, and her harassment continued unabated, till one night her husband thrashed her, burnt her with a hot iron rod and threw her
out of the matrimonial home. Upon this the brother of Kamini brought her back to the father’s home. The brother before taking his sister home lodged a complaint with
the police. Thereafter Kamini’s father also sent a registered notice to the son-in-law. In his reply to the registered letter, the son-in-law made allegations that while leaving
the matrimonial homes, his daughter and son had stolen, ornaments and other articles and goods. The High Court, on appeal, disagreed with the finding of the trial court.
P.C. Misra, J. observed that it would incongruous to say that a wife who was beaten up and thrown out of the house should have been, allowed by the husband
to take away gold ornaments.
Demand for Dowry- A cruelty under Criminal Law as well as Matrimonial Law- Sobha Rani v. Madhukar Reddi, AIR 1988 SC 121- The criminal offence of cruelty
can lead to the punishment of the husband and in-laws to jail term which may extend to three years and a fine may also be imposed. On the other hand, persistent demand
of dowry from her husband amounts to cruelty under the matrimonial-law which entitles the wife to seek the matrimonial relief of dissolution of marriage.
The Supreme Court expressed its anguish at the alarming increase in dowry deaths: “The alarming increase in cases relating to harassment, torture, abetted suicides and
dowry deaths of young innocent brides has always sent shock waves to the civilized society but unfortunately the evil has continued unabated. Awakening of the collective
consciences is the need of the day. Change of heart and attitude is needed.”
 The Medical Termination of Pregnancy Act, 1971
An Act to provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto. It extends to
the whole of India except the State of Jammu and Kashmir.
Section 2: Definitions –
(a) "guardian" means a person having the care of the person of a minor or a lunatic;
(b) "lunatic" means an idiot or a person of unsound mind u/s 3(5) of the Indian Lunacy Act, 1912.
(c) "minor" has not been defined directly under this Act. It says that any person who has not completed his 18 years of age, under the Indian Majority Act, 1875, shall
be deemed as Minor.
(d) "registered medical practitioner" means a medical practitioner who possesses any recognized medical qualification as defined u/s 2(h) of the Indian Medical Council
Act, 1956, whose name has been entered in a State Medical Register and who has such experience or training in gynecology and obstetrics as may be prescribed
by rules made under this Act.
Section 3: Conditions for Termination of Pregnancy
- When there is a risk to the life of the pregnant woman or of grave injury physical or mental health in case of continuation of pregnancy.
- When there is substantial risk that if the child was born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.
- When pregnancy is alleged by the pregnant woman to have been caused by rape.
- When any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children,
- When the length of the pregnancy does not exceed twelve weeks.
- When the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks.
Section 4: No termination of pregnancy shall be made in accordance with this Act at any place other than –
(a) a hospital established or maintained by Government, or
(b) a place for the time being approved for the purpose of this Act by Government.
Section 5: Sections 3 and 4 when not to apply –
(1) The provisions under Section 4 and 3(2) shall not apply to the termination of a pregnancy by the registered medical practitioner in case where he is of opinion,
formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.
(2) The termination of a pregnancy by a person who is not a registered medical practitioner shall be an offence punishable under the Indian Penal Code.
Section 6: Power to make rules –
(1) The Central Government may make rules to carry out the provisions of this Act, regarding the experience or training, or both, which a registered medical practitioner
shall have if he intends to terminate any pregnancy under this Act; and any such matter related to.
(2) Every rule made by the Central Government under this Act shall be laid (as soon as) before each House of Parliament while it is in session for a total period of thirty
days which may be comprised in one or two successive sessions, and If, both Houses agree/ not agree to make any modification in the rule however, that any such
modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
Section 7: Power to make regulations –
(1) The State Government may, by regulations –
(a) require any such opinion u/S 3 to be certified by a registered medical practitioner(s) concerned in such form and at such time as be specified in such regulations,
and the preservation or disposal of such certificates;
(b) require any registered medical practitioner, who terminates a pregnancy to give intimation of such termination and such other information relating to the
termination as maybe specified in such regulations;
(c) prohibit the disclosure, except to such persons and for such purposes as may be specified in such regulations, of intimations given or information furnished
inpursuance of such regulations.
(2) The intimation given an the information furnished inpursuance of regulations made by virtue of C1.(b)of Sub-section(1) of shall be given or furnished, as the case
may be, to the Chief Medical Officer of the State..
(3) Any person who wilfully contravenes or wilfully fails to comply with the requirements of any regulation made under sub-section (1) shall be liable to be punished
with fine which may extend to one thousand rupees.
Section 8: No suit for other legal proceedings shall lie against any registered medical practitioner for any damage caused likely to be caused by anything which is in good
faith done or intended to be done under this act.
Test Conducted During Pregnancy
Following are the test which is conducted during the pregnancy for finding any abnormalities in fetus
- Double Marker Test- 10-13 weeks
- Triple Marker Test- 18-20 weeks
- Anomaly Scan- 20 weeks
Most of this test is conducted during 20th weeks of pregnancy for proper diagnosis and result. And after the diagnosis some time treatment is also given to cure the
abnormalities in unborn fetus. But not in all cases the results are positive. So, in such cases the woman is forced to carry pregnancy unwillingly and forcefully. There, is
no means to keep Section 3.2.(ii) in MTP Act as in reality or practically it is not applicable in actual life when it is needed as in the case of Dr. Nikhil D. Datar v. Union
of India & Ors., SLP 2009: In her 20th week of pregnancy, Niketa Mehta’s sonography showed her fetus to be normal. However, in the 22nd week, the gynecologist
found that the fetus had a congenital complete heart block which would lead to a poor quality of life and could be fatal. Because the condition of Mrs. Mehta’s fetus was
not discovered until the 22nd week of her pregnancy, she sought permission to terminate the pregnancy from the Bombay High Court. The Court refused to allow an
abortion and Mrs. Mehta was forced to continue with her pregnancy. She ultimately had a miscarriage after months of grief and agony and at risk to her own personal
health and safety.
Whether really this act helps the women to avail safe termination of pregnancy or abortion as a right?
 The answer is No. Like in USA where women can avail the facility of abortion as a matter of Reproductive Right included in the fundamental right i.e. under Right to
Privacy, but in India not all women is allowed to opt Abortion service under MTP Act., only married women and rape victim were allowed unmarried, widow, and
divorcee are not.
 Even for married women they have to prove that pregnancy was due to failure of contraceptive measure, which is again violation of Right to privacy.
 Also, under Section 3.2.b [10], pregnancy can be terminated up to 20th week and not more than that. Also, under Section 3.2.ii [11], when there is a substantial risk that
if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.
 But, there is certain medical test which is conducted only during 20th week of pregnancy for the detection of any fetus abnormality. Now the question is, what is validity
of section 3.2.b and 3.2.i? As, termination of pregnancy is allowed, up to 20 weeks of gestation and not after that.
 In some of the cases any health-related issues of the baby is confirmed after 20 weeks. So, in that cases mother is forced to carry the pregnancy as it is illegal to abort
after 20 weeks. This is not only injustice to woman but to the child also.
Suggestions –
- Abortion of pregnancy should be allowed in any stage, when fetus is suffering from any severe health issue.
- MTP should be lenient in cases of such medical emergency.
- Awareness program is necessary to educate women for having healthy foods.
- Pregnant women with history of diabetics or thyroid should conduct the entire prescribed test on time.
- Abortion rights should be given to all women as in European countries.
- Media can play a vital role for spreading awareness in public relating to those tests which one should must do for the detection of abnormality in fetus.
- Abortion should be allowed up to 24th weeks.
- Law relating to abortion in India should be liberalize.
Cases –
1. Sheetal Shankar Salvi and another v. Union of India, 2017(5) SCALE 428 wherein the Court has declined termination of 20 weeks of pregnancy.
2. In Ms. Z v State of Bihar & others, (2017) the SC could not allow abortion in the 24th week of pregnancy, but gave her a 10 lakh compensation from the state
holding it responsible to keep child alive. The Court said that fundamental concept of bodily integrity, personal autonomy and sovereignty over the body of the
women have to be given requisite respect while taking a decision. the court does not define what “compelling State responsibility to keep the child alive” means. It
assumes that the concept of victim compensation would work in the absence of rehabilitation efforts by the state. What this judgment does is that it goes against the
very essence of Article 21 (the right to life) in the Constitution by flouting the reproductive autonomy of the aggrieved woman.
3. At the same time, there are cases decided by the courts that uphold the right of bodily integrity of a woman. In Ms. X v. Union of India (2016), the Supreme Court
clarified that the 20 week prescribed limit under the MTPA can be bypassed if the life of the woman is in ‘grave danger’; it also allowed a rape victim to terminate
her 24 week abnormal foetus. Ms X’s plea stated that the limit was “unreasonable, arbitrary, harsh, discriminatory and violative of the right to life and equality”.
4. In Suchitra Srivastava and Anr. v. Chandigarh Administration (2009), a three-judge bench held that “a woman’s right to make reproductive choices is also a
dimension of ‘personal liberty’ as understood under Article 21 of the Constitution”. In these circumstances, we find that the right of bodily integrity calls for a
permission to allow her to terminate her pregnancy.”
5. In Meera Santosh Pal and Ors v. Union of India (2017), the Supreme Court allowed termination of a 24 week pregnancy on medical grounds, stating that the
preserving the life of the woman was paramount — “In these circumstances, given the danger to her life, there is no doubt that she has a right to protect and preserve
her life and particularly since she has made an informed choice. The exercise of her right seems to be within the limits of reproductive autonomy.”
6. In Murugan Nayakkar vs. Union of India & Ors. (2017), the Apex Court allowed the termination of 32-week old pregnancy of a 13-year-old rape victim holding,
“Considering the age of the petitioner, the trauma she has suffered because of the sexual abuse and the agony she is going through at present and above all, the report
of the Medical Board constituted by this Court, we think it is appropriate that the termination of pregnancy should be allowed.”
7. However, in Savita Sachin Patil vs. Union of India the Court rejected termination of a 27-week pregnancy. The Medical Board gave a finding that there was no
physical risk to the mother but the fetus had severe physical anomalies. The Court then did not permit termination on the ground based on the Medical Board Report.
8. In Alakh Alok Srivastava vs. Union of India, (2017), where the petitioner was a 10-year-old pregnant rape victim with a 32-week pregnancy as well the Court did
not allow termination. The Medical Board opined that the continuation of the pregnancy was less hazardous for the petitioner than termination at that stage. During
the course of the proceedings, the Court asked the Centre to direct setting up of permanent medical boards in states to expeditiously examine requests for termination
post 20 weeks of pregnancy and the Centre issued instructions for the same.
9. Supreme Court admits petition to decriminalise abortion July 2019
“The right to exercise reproductive choice is the right to choose whether to conceive and carry pregnancy to its full term or to terminate is it at the core of one’s
privacy, dignity, personal autonomy, bodily integrity, self-determination and right to health recognised by Article 21 of the Constitution,” the petition filed by Swati
Agarwal, Garima Sekseria and Prachi Vats said.
A Bench led by Chief Justice of India, Ranjan Gogoi issued notice to the Centre on their contention that several provisions of the 48-year-old Medical Termination
of Pregnancy Act of 1971 imposes severe restrictions on the reproductive choice of a woman, her personal liberty and bodily autonomy. The court asked the
government to respond to the petition.
 The Indecent Representation of Women (Prohibition) Act, 1986
Background
This parliament session much debate was focused on improving women’s safety. This saw the passage of the Criminal Law (Amendment) Act, 2013 making changes in
various existing statutes related to sexual offenses.
Predating this enactment was another legislative measure which sought to further the interests of women. This was in the form of amendments proposed to the IRW Act
which did not pass legislative muster but remains pending in parliament. The reasons for the proposed amendments were contained in a statement put out in a Press
Information Bureau release.
It stated that, “over the years, technological revolution has resulted in the development of newer forms of communication such as internet and satellite based communication,
multi-media messaging, cable television etc. It has, therefore, become imperative to widen the scope of the law so as to cover such forms of media, on one hand, and to
strengthen the existing safeguards to prevent indecent representation of women through any such form.”
It betrayed a certain nervousness when it went on to say, “extensive consultations have been held with stakeholders including lawyers and civil society organizations on the
draft Bill, before its finalization.”
Proposed amendments
As the press release alludes the IRW Amendment Bill, 2012 aims to amend certain provisions of the IRW Act, 1986 to extend it to digital mediums.
The thrust of the IRW Act, 1986 has been to penalize advertisers and publishers who hope to profit from the objectification of women. Here it would seem only natural for
the same law to apply to paper and webpages. Medium neutrality has been a consistent theme in the civil liberties debate, where much criticism from commentators has
been as to the absence of agnosticism in the law. So its only natural for the IRW Act to be extended online for the regulation of content to remain consistent across mediums.
In keeping with this objective the IRW Amendment Bill, 2012 in the amendments proposed to Sec. 3 and Sec. 4 propose the addition of the terms, “electronic or in any
form”. Sec. 3 contains the prohibition of advertisements containing indecent or derogatory representation of women and Sec. 4 contains the Prohibition of publication,
transmission, distribution of materials containing indecent representation of women.
Over and above this, there are two other key additions proposed by the amendments. Firstly the definition of “indecent representation of women” is expanded, thereby
bringing more content under the ambit of the law. This has been notably done by the addition of a traditional obscenity prong (such as one under Section 292 of the Indian
Penal Code) to indecency. The law generally regarded, indecency and obscenity to be distinct offenses. However, the amendment proposes to insert obscenity under the
existing definition of indecency thereby making it broader. Secondly, the penalties for contravention of Sec. 3 or 4, under the law have been hiked from a minimum period
of imprisonment of two years to three years.
A question which arises is the law liable to abuse. Inextricably linked is the objection, aren’t all laws liable to abuse ? Whats so special here ?
Notable precedent
The history of prosecutions under the IRW Act has been vexed. The torrent of advertisements and newspaper supplements which objectify women shows that the Act has
been inefficient in serving its purpose. Separate from its failure to morally fasten portrayals of women a bothersome pattern of its abuse has emerged.
This abuse has been apparent through several cases which demonstrate how broadly the law is framed and how it is invoked. Though given most of the cases are ultimately
dismissed, the legal process, or as it is stated politely, the rigors of law are coercive. Ultimate vindication is often a Pyhrric victory obtained through years of exhausting an
appeals process. Each one of the instances below demonstrates this point.
For instance take the case of Babban Prasad Mishra v. P.S. Diwan (2006 CriLJ 3263), where advertisements of a Kama Sutra Capsule were showed with a woman lying in
the lap of a man. The judge quashing the criminal case which was filed against the Petitioner, noted that no obscenity or indecency was involved in the advertisement. The
point to take away from this case is that a pictorial representation of a woman lying in the lap of a man was an adequate threshold for the commencement of a legal
prosecution.
Now lets come to two cases of where the abuse of the IRW Act was noticed by the Courts. Both of them involve female actors.
The first case titled as Shilpa Shetty v. T. Dakshinamurthy, where the Madras High Court quashed two non bailable warrants issued against Shilpa Shetty on a complaint
made by a advocate stating that certain pictures of her published in a local daily violated the IRW Act. The court stated that since the IRW Act applied to publishers, and
not the models/actors in the picture the prosecution could not be sustained. Even while doing this the same benefit was not extended to the publisher of the local daily and
the trial proceeded against him. Kindly consider the ease with which a non-bailable warrant can be issued by a district court acting under the IRW Act against a out of state
defendant.
The second and the more sensational case is titled as Khusboo v. Kanniammal, where the actor, Khushboo, had to go up till the Supreme Court to get the multiple criminal
complaints filed against her quashed. The complaints under the IRW Act arose from her comments advocating more bodily autonomy for women in the context of pre-
marital sex.
The Supreme Court quashing the charges against her stated that the IRW Act, “was enacted to punish publishers and advertisers who knowingly disseminate materials that
portray women in an indecent manner. However, this statute cannot be used in the present case where the appellant has merely reffed to the incidence of pre-maritial sex in
her statement which was published by a news magazine and subsequently reported in another periodical. It would defy logic to invoke the offenses mentioned in this statute
to proceed against the appellant, who cannot be described as an ‘advertiser’ or ‘publisher’ by any means.”
This judgment came after a similar non-bailable warrant was issued against Khushboo and she had to surrender before a court to take bail. One of the bail conditions imposed
by the Court prevented her from talking to the media about the case. Even people who supported did not escape the legal process. Suhasini Mani Rathnam, who had defended
Khushboo, had four cases filed against her.
The Union women and child development (WCD) ministry has finalised fresh amendments to the Indecent Representation of Women (Prohibition) Act, 1986, widening
its scope to make indecent portrayal of women on internet and other over-the-top services and applications such as WhatsApp and Instagram punishable with a fine of Rs
2 lakh, and prison term of up to three years, two ministry officials familiar with the development said on condition of anonymity.
The original law, enacted in 1986, relates primarily to the print media and prohibited indecent portrayal of women through advertisements, publication, writing and
paintings. The current punishment is a prison term of up to two years and a fine of RS 2,000.
The new penal provisions are similar to those provided under Section 67 of the Information Technology Act, 2000 that deals with publishing of information which is
obscene in electronic form.
The ministry has expanded the definition of indecent representation of women to include “depiction of women as a sexual object, which appeals to the prurient interest”.
the law could become counter-productive and affect a woman’s autonomy of self expression. “It’s out of step and can be easily misused. The 2013 Criminal Law
(Amendment) Act already deals with sexual offences,
The ministry had in 2012 proposed similar amendments and introduced the Indecent Representation of Women (Prohibition) Amendment Bill in Rajya Sabha in 2012.
But the bill lapsed. The changes have been in limbo since.
The WCD ministry has also proposed setting up of a centralised authority under the National Commission of Women (NCW), which will be authorised to receive
complaints regarding any programme or advertisement broadcast or published and investigate/ examine all matters relating to the indecent representation of women.
The authority will be headed by Member Secretary, NCW and will have representatives from Advertising Standards Council of India, Press Council of India, Ministry of
Information and Broadcasting and one member with experience of working on women issues.
Consider the following examples.
 The Delhi Slutwalk Facebook Page has a panned out picture of nude women protesting against AFSPA outside a Assam Rifles Barrack.
 The Feminist India Facebook Page has a picture of the same protest, however the protesting and partially nude women are this time covered by banner which
protests AFSPA.
 The GotStared.At Facebook Page has a picture of a womans legs, questioning patriarchal male attitudes about the correlation skirt length and sexual consent.
Its not these pages in isolation or the extension of the IRW Act which poses a threat of prosecution. It is the growing constituency of the offended, many of whom are the
self arrogated custodians of Indian values. This has deeper links with a resurgence of right wing nationalism which is as many say disproportionately represented in online
media encouraging a slur of “internet hindus”. An extended IRW Act would certainly provide a ready powder keg to such an easily inflammable group.
The short of it can be summarized in two rhetorical questions.
Will the IRW Act with its 10 sections dent patriarchy and objectification of women? It might.
Will the same 10 sections pose a risk for groups and individuals espousing the rights of women ? They certainly will.
 The Commission of Sati (Prevention) Act, 1987
The ancient Hindu tradition called ‘sati’ (or ‘suttee’), wherein a widow would burn herself to death on her husband’s pyre, was initially a voluntary act that was considered
to be quite courageous and heroic, but it later became a forced practice.
The word is Sati derived from the Sanskrit word ‘asti’, which means ‘she is pure or true’. In mythological terms, Sati was the name of the wife of Lord Shiva. Her father
never respected Shiva and often despised him. To protest against the hatred that her father held for her husband, she burned herself. While she was burning, she prayed
to be reborn as Shiva’s wife again. This did happen, and her new incarnation was called Parvati. People used to justify the practice based on this tale, but when Sati burned
herself, she wasn’t a widow, and thus the practice is quite unrelated to this tale.
Sati, or Suttee, is derived from the name of the goddess Sati, who immolated herself because she was unable to bear her father Daksha's humiliation towards her husband
Shiva. Sati was regarded as a barbaric practice by the Islamic rulers of the Mughal period. In the 16th century, Humayun was the first to try a royal agreement against the
practice. Akbar was next to issue official orders prohibiting Sati and since then it was done voluntarily by women. He also issued orders that no woman could commit
Sati without a specific permission from his chief police officers. Akbar had also instructed the officers to delay the woman's decision for as long as possible.
Many Hindu scholars have argued against Sati, calling it as 'suicide, and...a pointless and futile act'. By the end of the 18th century, the practice had been banned in
territories held by some European powers. The Portuguese banned the practice in Goa by 1515. The Dutch and the French banned it in Hugli-Chunchura (then Chinsurah)
and Pondicherry.
Sati has occurred in some rural areas of India in the 21st century. According to some official reports, around 30 cases of Sati, from 1943 to 1987, were documented in
India. The practice still occurs today in some parts of India and is still regarded by some as the ultimate form of womanly devotion and sacrifice.
In the modern times, there have been a few instances of sati in Rajasthan (1987), Utter Pradesh (2006) Madhya Pradesh (2002 and 2006) and in Chattisgarh (2008). Indian
society might have progressed and moved forward but the social evil of sati continues to hang around in Indian society.
In September 1987, 18-year-old Roop Kanwar, a young widow of Rajasthan (she was married for just 8 months) was forced to commit sati after the death of her husband.
Many litres of ghee (cooking butter) were poured on her as she burnt to death on her husband's funeral pyre. People who assisted her in suicide were arrested. But Roop
Kanwar is idolized and has attained the status of a deity; a temple was built for her. In October 1996, the Indian Court upholds the suicide as a social tradition and acquitted
all 38 defendants who assisted Roop Kanwar.
Kuttu Bai, a 65 year widow committed sati in the state of Madhya Pradesh in August 2002 , another was Vidyawati a 35-year-old woman committed Sati by jumping
into the blazing funeral pyre of her husband in the year 2006 in Utter Pradesh, Janakrani (40years old) was burnt to death on the funeral pyre of her husband in Sager
District of Madhya Pradesh in August 2006 and very recently one Lalmati (71 years old) of Chatisgarh had committed sati in October 2008.
Lesser known facts about Sati
Punishment for offences relating to Sati
3. Attempt to commit sati- Whoever attempts to commit sati and does any act towards such commission shall be punishable with imprisonment for a term which may
extend to one year or with fine or with both: Provided that the Special Court trying an offence under this section shall, before convicting any person, take into consideration
the circumstances leading to the commission of the offence, the act committed, the state of mind of the person charge of the offence at the time of the commission of the
act and all other relevant factors.
4. Abetment of sati.-
(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860) , if any person commits sati, whoever abets the commission of such sati, either
directly or indirectly, shall be punishable with death or imprisonment for life and shall also be liable to fine.
(2) If any person attempts to commit sati, whoever abets such attempt, either directly or indirectly, shall be punishable with imprisonment for life and shall also be
liable to fine.
Explanation.- For the purposes of this section, any of the following acts or the like shall also be deemed to be an abetment, namely:
(a) any inducement to a widow or woman to get her burnt or buried alive along with the body of her deceased husband or with any other relative or with any
article, object or thing associated with the husband or such relative, irrespective of whether she is in a fit state of mind or is labouring under a state of
intoxication or stupefaction or other cause impeding the exercise of her free will;
(b) making a widow or woman believe that the commission of sati would result in some spiritual benefit to her or her deceased husband or relative or the general
well being of the family;
(c) encouraging a widow or woman to remain fixed in her resolve to commit sati and thus instigating her to commit sati;
(d) participating in any procession in connection with the commission of sati or aiding the widow or woman in her decision to commit sati by taking her along
with the body of her deceased husband or relative to the cremation or burial ground;
(e) being present at the place where sati is committed as an active participant to such commission or to any ceremony connected with it;
(f) preventing or obstructing the widow or woman from saving herself from being burnt or buried alive;
(g) obstructing, or interfering with, the police in the discharge of its duties of taking any steps to prevent the commission of sati.
5. Punishment for glorification of sati.- Whoever does any act for the glorification of sati shall be punishable with imprisonment for a term which shall not be less than
one year but which may extend to seven years and with fine which shall not be less than five thousand rupees but which may extend to thirty thousand rupees.
Powers of Collector or District Magistrate to prevent offences relating to Sati
6. Power to prohibit certain acts.
7. Power to remove certain temples or other structures.
8. Power to seize certain properties.
 The National Commission for Women Act, 1990
While Indian women have fought against the patriarchal Indian society and triumphed at many levels, cases of rape, dowry deaths, female infanticide, sexual harassment
at workplaces, female illiteracy, and similar problems are still rampant in Indian society. It was in this backdrop that the Committee on the Status of Women in India
(CSWI) established the National Commission for Women to fulfill the surveillance functions and to facilitate redressal of grievances and to accelerate the socio-economic
development of women.
The Supreme Court through interpretive processes has tried to extend some safeguards to women. Through judgments in cases such as Bodhisattwa Gautam v. Subra
Chakraborty (AIR 1996 SC 922) and the Chairman Rly Board v. Chandrima Das (AIR 2000 SC 988), where rape was declared a heinous crime, as well as the
landmark judgment in Visakha v. State of Rajasthan (AIR 1997 SC 3011) the Courts have tried to improve the social conditions of Indian women. But these have
hardly sufficed to improve the position of women in India. Thus, in light of these conditions, the Committee on the Status of Woman in India (CSWI) as well as a number
of NGOs, social workers and experts, who were consulted by the Government in 1990, recommended the establishment of an apex body for women.
The National Commission for Women Act, 1990 (Act No. 20 of 1990 of Government of India) constituted the National Commission for Women as a statutory body. The
first commission was constituted on 31st January 1992 with Mrs. Jayanti Patnaik as the Chairperson.
The Constitution of The Commission:
 Section 3 provides for the constitution of the commission. It lays down that the commission will consist of 1 Chairperson, who is committed to the cause of women,
5 members from various fields and a member secretary who shall be an expert in the fields of management, organizational structure, sociological movement, or a
member of the civil service of the Union. All the members of the commission are nominated by the Central Government.
 Each person holds office for a period of five years or till he attains the age of seventy. At least one member of the Commission must belong to a Scheduled Caste or
Scheduled Tribe. Also, the Commission has the power to set up committees with members from outside the Commission.
The Mandate of the Commission: Section 10(1) of the Act provides a fourteen-point mandate for the National Commission for Women. Broadly speaking the
Commission's mandate can be divided under four heads –
(1) Safeguard Rights of Women: Under Section 10 (1) (a – e) of the Act the Commission is –
- to examine the safeguards for women provided by the law and the Constitution.
- to submit reports about these safeguards and make recommendations about the implementation of the same.
- to review these safeguards periodically to identify and remedy any lacunae and inadequacies.
- also empowered to take up cases involving the violation of the cases.
(2) Study of problems faced by women: Under Section 10 (1) (g – i) of the Act, the Commission is –
- to carry out studies involving the problems arising out of discrimination against woman and provide remedies for these problems.
- also expected to advise the government about the socio – economic development of women based on these studies.
(3) Evaluating status of Indian women: Under Section 10 (1) (j – n), the Commission has the responsibilities of evaluating the status of Indian women under the Union
and the State Governments, therefore, it is, to inspect and evaluate the conditions of detention homes and other such facilities in which women may be detained
and deal with the appropriate authorities in order to improve the condition of such places. These evaluations are to be submitted to the Government through periodic
reports and recommendations.
(4) Fighting cases related to women's rights violation: Section 3 (f) of the Act empowers the Commission to take suo moto notice of matters relating to women's right
deprivation, non – implementation of laws enacted to protect women and non – compliance of policies and guidelines for mitigating hardships of women, in such
matters the Commission is empowered to approach the appropriate authorities and seek remedies. Therefore, the Commission is to take up cases related to
discrimination against women, women's right violation and fund cases which involve the rights of a large number of women.
Functions of the Commission: As violence and discrimination against women is multi – faceted in nature, the Commission has adopted a multi – pronged strategy to
combat the problem. This strategy is broadly divided into three categories –
(1) Complaint and Counseling Functions: The core unit of the Commission is considered to be the Complaint and Counseling Cell processes the complaints received
oral, written or suo moto under Section 10 of the NCW Act. The complaints received are related to domestic violence, harassment, dowry, torture, desertion,
bigamy, rape and refusal to register FIR, cruelty by husband, derivation, gender discrimination and sexual harassment at work place. During 1999, the Commission
received 4329 complaints related to the stated crimes against women.
This cell adopts a three-point method to deal with the mentioned problems:
- Investigations by the police are expedited and monitored.
- Family disputes are resolved or compromised through counseling.
- In case of serious crimes, the Commission constitutes an Inquiry Committee, which makes spot enquiries, examines various witnesses, collects evidence and
submits the report with recommendations. Such investigations help in providing immediate relief and justice to the victims of violence and atrocities. The
implementation of the report is monitored by the NCW. There is a provision for having experts/lawyers on these committees.
(2) Legal Functions: A large part of the Commission's mandate is related to legal research for safeguards of women, legal interventions, recommendations on bills and
similar matters relating to the legal system of India. The legal cell of the Commission was set up to deal with these functions. The activities of this cell can be
divided into three categories:
(a) Legal Amendments: The Commission's mandate requires that it analyze and improve existing laws from time to time. The Commission has proposed sixteen
amendments till date. The commission has sought to amend –
- The Indian Penal Code, 1860: to curb the sale of minor girls;
- The Hindu Marriage Act, 1955: to omit epilepsy as grounds for divorce;
- The Dowry Prohibition Act, 1961: to bring the problems of dowry deaths to the lime light and deal with them appropriately: and
- The NCW Act, 1990: to gain greater autonomy and jurisdiction within the country.
In addition to these there are a number of other Acts and Bills, which the Commission has sought to, amend.
(b) News Bills Proposed: In the course of fourteen years, the Commission has proposed a total of seven bills and has drafted one convention for SAARC relating
to trafficking of women and children. Amongst other bills the Commission proposed
- The Marriage Bill, 1994;
- The Criminal Laws (Amendment) Bill, 1994 (with reference to child rape);
- The Criminal Laws (Amendment) Ordinance, 1996;
- The Domestic Violence to Women (Prevention) Bill, 1994; The Protection of Women from Domestic Violence Bill was passed in 2005.
(c) Court Intervention: The Commission has intervened in numerous Court cases, in order help women whose rights have been violated. The Commission
intervened in –
- The Bhateri gang rape case and supported the victim and provided her protection.
- The Maimon Baskari's Nuh case the Commission fought for the right of the victim to marry a person of her own choice and against out-dated customs.
- Fakhruddin Mubarak Shaik v. Jaitunbi Mubarak Shaik, the Commission intervened to seek maintenance beyond the iddat period for Muslim women.
- The Commission was also partly responsible for the actions taken in the Imrana and Marine Drive rape cases.
(3) Research Functions: The research cell of the Commission is that organ of the Commission that looks into the emerging problems of Indian women due to
discrimination and gender bias. This cell is also responsible for educating women about their rights through a variety of seminars, workshops, conferences and
public hearings. This cell has also organized various special studies and set up expert committees to look into and suggest remedies for problems, which have
evolved recently. Currently the cell is dealing with issues related to Gender and Law Enforcement, Impact of Displacement of Women, Sexual Harassment at
Workplace, Issues concerning Prostitution and Political Empowerment of Women.
The three aforementioned organs of the Commission have been quite successful in carrying out the mandate which the Commission was given by the Act of 1990.
Amongst the three cells, it is perhaps the Counseling cell which has been the most successful because it is that cell of the Commission which is in direct contact with
the people. The other cells, while equally successful, deals more with the different agencies of the Government and thus not so widely acclaimed.
Analysis:
It may be said that the Commission has managed to fulfill the mandate, if not completely then to a great extent. The achievements are only a few but they are proof of the
popularity and support the Commission is gaining from the Indian woman. There is no doubt about the effectiveness of the Commission and about the good work which
it is doing for the women in India, however, there are certain shortcomings in the working of the Commission, which, if rectified, would lead to a more efficient and
productive Commission.
The followings are the shortcoming:
- The Commission has no concrete legislative powers. It only has the powers to recommend amendments and submit reports which are not binding on State or Union
Governments.
- The Commission does not have the power to select its own members. This power is vested with the Union Government and in India's volatile political scenario the
Commission may be politicized.
- The Commission is dependent on grants from the Union Government for its financial functioning and this could compromise the independence of the Commission.
Suggestions:
The above-mentioned causes have both positives and negatives but every short-comings has its own way out. To overcome the aforementioned shortcomings, it may be
useful to incorporate the following suggestion:
- The Chairperson of the NCW be given the status of the Union Cabinet Minister and the Members that of Minister of State. This will put more power in the Commission's
hands and thus its recommendations shall have greater degree of force.
 - The Commission must be granted the power to select its own members. If needed a separate body, selected from within the Commission, should be constituted in order
to carry these functions.
- The Commission must be given allocated funds in the Union as well as the State Budgets in order to facilitate smooth functioning. Currently, funds are only allocated
at the Central level and not the State level.
The functions of NCW:
(1) The commission shall perform all or any of the following functions, namely: -
(a) Investigate and examine all matters relating to the safeguards provided for women under the Constitution and other laws;
(b) present to the Central Government, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguard;
(c) make in such report’s recommendations for the effective implementation of those safeguards for the improving the conditions of women by the Union or any
state;
(d) review, from time to time, the exiting provisions of the Constitution and other laws affecting women and recommend amendments thereto so as to suggest
remedial legislative measures to meet any lacunae, inadequacies or shortcomings in such legislations;
(e) take up cases of violation of the provisions of the Constitution and of other laws relating to women with the appropriate authorities;
(f) look into complaints and take suo moto notice of matters relating to:-
 deprivation of women's rights;
 non-implementation of laws enacted to provide protection to women and also to achieve the objective of equality and development;
 non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships and ensuring welfare and providing relief to women, and take
up the issues arising out of such matters with appropriate authorities;
(g) call for special studies or investigations into specific problems or situations arising out of discrimination and atrocities against women and identify the constraints
so as to recommend strategies for their removal;
(h) undertake promotional and educational research so as to suggest ways of ensuring due representation of women in all spheres and identify factors responsible
for impeding their advancement, such as, lack of access to housing and basic services, inadequate support services and technologies for reducing drudgery and
occupational health hazards and for increasing their productivity;
(i) participate and advice on the planning process of socio-economic development of women;
(j) evaluate the progress of the development of women under the Union and any State;
(k) inspect or cause to inspected a jail, remand home, women's institution or other place of custody where women are kept as prisoners or otherwise and take up with
the concerned authorities for remedial action, if found necessary;
(l) fund litigation involving issues affecting a large body of women;
(m) make periodical reports to the Government on any matter pertaining to women and in particular various difficulties under which women toil;
(n) any other matter which may be referred to it by Central Government.
(2) The Central Government shall cause all the reports referred to in clause (b) of sub-section (1) to be laid before each House of Parliament along with memorandum
explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any such
recommendations.
(3) Where any such report or any part thereof relates to any matter with which any State Government is concerned, the Commission shall forward an copy of such report
or part to such State Government who shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed
to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any such recommendations.
(4) The Commission shall, while investigating any matter referred to in clause (a) or sub-clause (i) of clause (f) of sub-section (1), have all the powers of a civil court
trying a suit and, in particular in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person from any part of India and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses and documents; and
(f) any other matter which may be prescribed.
 The PC-PNDT, 2004
The State of Maharashtra in 1988 became the first in the country to ban pre-natal sex determination through enacting the Maharashtra Regulation of Pre-natal Diagnostic
Techniques Act.
The Pre-conception & Pre-natal Diagnostics Techniques (PC & PNDT) Act, 1994 was enacted in response to the decline in Sex ratio in India, which deteriorated from
972 in 1901 to 927 in 1991. The main purpose of enacting the act is to ban the use of sex selection techniques before or after conception and prevent the misuse of prenatal
diagnostic technique for sex selective abortion.
Offences under this Act include conducting or helping in the conduct of prenatal diagnostic technique in the unregistered units, sex selection on a man or woman,
conducting PND test for any purpose other than the one mentioned in the Act, i.e., sale, distribution, supply, renting etc. of any ultra sound machine or any other equipment
capable of detecting sex of the foetus.
Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PNDT), was amended in 2003 to The Pre-Conception and Pre-Natal Diagnostic
Techniques (Prohibition Of Sex Selection) Act (PCPNDT Act) to improve the regulation of the technology used in sex selection. The Act was amended to bring the
technique of pre conception sex selection and ultrasound technique within the ambit of the act. The amendment also empowered the central supervisory board and state
level supervisory board was constituted.
Main provisions in the act are:
• It regulates the use of pre-natal diagnostic techniques, like ultrasound and amniocentesis by allowing them their use only to detect few cases. No laboratory or
center or clinic will conduct any test including ultrasonography for the purpose of determining the sex of the foetus.
• No person, including the one who is conducting the procedure as per the law, will communicate the sex of the foetus to the pregnant woman or her relatives by
words, signs or any other method.
• Any person who puts an advertisement for pre-natal and pre-conception sex determination facilities in the form of a notice, circular, label, wrapper or any
document, or advertises through interior or other media in electronic or print form or engages in any visible representation made by means of hoarding, wall
painting, signal, light, sound, smoke or gas, can be imprisoned for up to three years and fined Rs. 10,000.
• The Act mandates compulsory registration of all diagnostic laboratories, all genetic counselling centers, genetic laboratories, genetic clinics and ultrasound clinics.
It is a draconic act from the point of its effect on radiologists/sonologists, as it offers no escape. Non-compliance of the Act in any manner, be it the smallest of an error
brings wrath upon the errant. The Act penalizes all the errants, either involved in sex determination or non-maintenance of records. But at the same time, it is very simple
to fulfill and abide by the requisitions of the Act.
The few basic requirements of the Act are:
• Registration u/s 18 of the PC-PNDT Act.
• Written consent of the pregnant woman and prohibition of communicating the sex of fetus u/s 5 of the Act.
• Maintenance of records as provided u/s 29 of the Act.
• Creating awareness among the public at large by placing the board of prohibition on sex determination.
However, there are only 586 convictions out of 4,202 cases registered even after 24 years of existence. It reflects the challenges being faced in implementing this social
legislation.
Cases –
The Hon’ble SC after a PIL filed by an NGO on slow implementation of the Act made some amendments. These amendments have come into operation with effect from
14th February, 2003. (CEHAT and Ors, 2000)
The SC upheld the provisions of the anti-pre-natal sex determination law which ‘criminalises’ non-maintenance of medical records by obstetricians and gynaecologists and
suspended their medical licence indefinitely. The Court held that these provisions in the Act were necessary to prevent female foeticide in the country.
(Federation of Obstetrics and Gynecological Societies of India (FOGSI) v. UOI & Others, 2017)
 The Protection of Women from Domestic Violence Act, 2005
Protection of Women from Domestic Violence Act, 2005 contains five chapters and thirty-seven sections. The origin of the Act lies in Article 15 (2) of the Constitution
of India, which clearly says that “State can make special provisions for women and children” towards realizing the right to equality. This indicates the use of affirmative
action to remedy a wrong. It is often said that India has several laws but they are not implemented. The problem, however, is not the lack of implementation, but the lack
of a mechanism by which it can be implemented.
In the Act, this has been done by creating the office of the Protection Officer and recognizing the role of the Service Providers. Affirmative duties have been imposed on
the government to provide legal aid, medical facilities and shelter homes in the hope that women in distress be given all these facilities. The Act is a statement of
commitment by the State that domestic violence will not be tolerated.
The term ‘Domestic Violence’ has been used in widest sense which covers all forms of physical, sexual, verbal, emotional and economic abuse that can harm, cause
injury to, endanger the health safety, life, limb or well-being either mental or physical of the aggrieved person.
The term ‘Aggrieved Person’ covers not just a wife but a woman who is the sexual partner of the male irrespective of whether she is legal wife/not (includes live-in
relationships). The daughter, mother, sister, child (male or female), widowed relative, in fact, any woman residing in the household who is related in some way with the
respondent is covered by the act.
The term ‘Respondent’ implies “any male, adult person who is/ has been, in a domestic relationship with the aggrieved person”. This ensures that the Respondent’s
mother, sister and other relatives do not go scot free, the case can also be filed against relatives of the husband or the male partner.
Basic Features of the Domestic Violence Act, 2005
1. Apart from the victim herself, the complaint regarding an act or act of domestic violence can also be lodged by ‘any person who has a reason to believe that’ such an
act was committed or is being committed. This means that neighbors, social workers, relatives can also take initiative. And the provisions of the Domestic
Violence Act make sure that ‘no criminal, civil or any other liability’ lies on the informer, if the complaint is lodged in good faith.
2. The magistrate has been given powers to permit the aggrieved women to stay in her place of adobe and she cannot be evicted by her male relatives in the retaliation.
This is not all; the aggrieved woman can even be allotted a part of the house for personal use.
3. The respondent can be prohibited from dispossessing the aggrieved person or in any other manner disturbing her possessions, entering the aggrieved person’s place of
work, if the aggrieved person is a child, the school. Also, magistrate can bar the respondent to communicate with aggrieved person by “personal, oral, written,
electronic or telephonic contact.”
4. The magistrate can impose monthly payments of maintenance. The respondent can also be ordered to meet the expenses incurred and losses suffered by the aggrieved
person and any child of aggrieved person as a result of domestic violence. It can also cover loss of earnings, medical expenses, loss or damage to property. U/s.22
magistrate can make the respondent pay compensation and damages for injuries including mental torture and emotional distress caused by act(s) of domestic violence.
5. Penalty up to one-year and/or a fine up to Rs.20,000/- can be imposed under the act. The offence is also considered cognizable and non-bailable while Sec 32 (2) goes
even further and says that ‘under the sole testimony of the aggrieved person, the court may conclude that an offence has been committed by the accused”.
6. The act ensures speedy justice as the court has to start proceedings and have the first hearing within 3 days of the complaint being filed in the court and every case
must be disposed of within a period of sixty days of the first hearing.
7. The act makes provisions for state to provide for protection officers and status of ‘service providers’ and ‘medical facility’.
8. Sec 16 allows the magistrate to hold proceedings in camera “if either party to the proceedings so desires”.
The following are some other important aspects that the Act covers.
1. Victim resources: Under the Act, victims should be provided with adequate medical facilities, counselling and shelter homes as well as legal aid when required.
2. Counselling: Section 14: Counselling, as directed by the magistrate, should be provided to both the parties involved, or whichever party requires it, as ordered.
3. Protection Officers: Section 9: Under the Act, Protection Officers should be appointed by the government in every district, who preferably should be women, and
should be qualified. The duties of the Protection Officer include filing a domestic incidence report, providing shelter homes, medical facilities and legal aid for the
victims, and ensuring that protection orders issued against the respondents are carried out.
4. Protection orders: Section 18: Protection orders for the victim’s safety can be issues against the respondent, and includes for when he commits violence, aid or
abets it, enters any place which the victim frequents or attempts to communicate with her, restricts any form of assets of the victim or causes violence to people of
interest to the victim.
6. Monetary relief: Section 20: The respondent has to provide relief to the victim to compensate for loss, including loss of earnings, medical expenses, any expenses
incurred due to loss of property by destruction, damage or removal, and maintenance of the victim and her children.
7. Custody of children: Section 21: Custody of children should be granted to the victim as required, with visiting rights to the respondent if necessary.
Benefits of the Act –
This legislation was enacted after a ratification of the CEDAW (Convention on the Elimination of All forms of Discrimination Against Women).
The definition of ‘domestic relationship’ is broad enough to cover all sorts of household arrangements; for example, live-in relationships when the couple is not married.
The inclusion of this, as well as relationships which fall under categories of fraudulent or bigamous, was a pioneering step. With regard to live-in relationships itself, in a
distinctive judgement passed in the case of Bharata Matha & Ors v. R. Vijaya Renganathan & Ors, it was decided that a child born out of a live-in relationship is entitled
to property (the property owned by the parents, but not ancestral property). This means that a woman and her child in a live-in relationship cannot be threatened with
economic abuse. Of course, although this has more relevance to property ownership and the Hindu Marriage Act, it is gratifying to know that children born out relationships
which are not akin to marriage can also have property rights.
Furthermore, the Act also provides relief to domestic violence committed by both male and female relatives of the husband or male partner (which would aid in situations
where family members harass the wife etc.). Additionally, the definition of “child” is also inclusive of foster, adopted and stepchildren.
The respondent has a duty to pay the victim compensation and not cut off financial resources, and this protects the victim from not only violence but also protects her
interests. The definition of “shared household” specifies that regardless of whether or not the victim has legal rights/equity over the household; if she has inhabited the
house with the respondent, and he has been violent with her, then the respondent is liable under the Act. This means that even if she does not have legal or financial stake
in the house, the respondent cannot evict her.
The protection orders are inclusive of most instances where the respondent could have possibly taken advantage of the victim, and again is not limited to that definition
alone. Finally, the orders issued by the law should be given free of cost to the victim as proof.
What can be improved?
One of the most contested points of the Act is very obviously the definitions of “aggrieved person” and “respondent”; and how only women’s rights against domestic
violence are covered in the Act. It is also important to understand that the act provides quasi-criminal or civil remedies to women given that there is a need in a particular
social context in which domestic violence takes place in India. Not only do women form a higher proportion of domestic violence victims, but combined with lower
political-social and economic decision-making power it is harder from them to exit the abusive domestic relationships.
One issue which seems to have been ignored entirely are queer relationships. Even though there is no specific statement of the same in the Act, in the judgement
of S.Khushboo Vs. Kanniammal & Anr., the SC specified that a live-in relationship is permissible only in unmarried persons of major age in heterogeneous relationships.
 The Information Technology Act, 2008
What does IT Act 2000 legislation deals with?
The Act essentially deals with the following issues:
 Legal Recognition of Electronic Documents
 Legal Recognition of Digital Signatures
 Offenses and Contraventions
 Justice Dispensation Systems for cybercrimes.
Why did the need for IT Amendment Act 2008 (ITAA) arise?
The IT Act 2000, being the first legislation on technology, computers, e-commerce and e-communication, the was the subject of extensive debates, elaborate reviews with
one arm of the industry criticizing some sections of the Act to be draconian and other stating it is too diluted and lenient. There were some obvious omissions too resulting
in the investigators relying more and more on the time-tested (one and half century-old) Indian Penal Code even in technology-based cases with the IT Act also being
referred in the process with the reliance more on IPC rather on the ITA.
Thus, the need for an amendment – a detailed one – was felt for the I.T. Act. Major industry bodies were consulted and advisory groups were formed to go into the
perceived lacunae in the I.T. Act and comparing it with similar legislations in other nations and to suggest recommendations. Such recommendations were analyzed and
subsequently taken up as a comprehensive Amendment Act and after considerable administrative procedures, the consolidated amendment called the Information
Technology Amendment Act 2008 was placed in the Parliament and passed at the end of 2008 (just after Mumbai terrorist attack of 26 November 2008 had taken place).
The IT Amendment Act 2008 got the President assent on 5 Feb 2009 and was made effective from 27 October 2009.
Notable features of the ITAA 2008 are: The Act totally has 13 chapters and 90 sections. Sections 91 to 94 deal with the amendments to the four Acts namely Indian
Penal Code 1860, The Indian Evidence Act 1872, The Bankers’ Books Evidence Act 1891 and the Reserve Bank of India Act 1934. The Act has chapters that deal with
authentication of electronic records, electronic signatures etc.
 Focusing on data privacy
 Focusing on Information Security
 Defining cyber café
 Making digital signature technology neutral
 Defining reasonable security practices to be followed by corporate
 Redefining the role of intermediaries
 Recognizing the role of Indian Computer Emergency Response Team
 Inclusion of some additional cyber-crimes like child pornography and cyber terrorism
 Authorizing an Inspector to investigate cyber offenses (as against the DSP earlier)
Cybercrime in a narrow sense (computer crime): Any illegal behavior directed by means of electronic operations that targets the security of computer systems and the
data processed by them.
Cybercrime in a broader sense (computer-related crime): Any illegal behavior committed by means of, or in relation to, a computer system or network, including such
crimes as illegal possession and offering or distributing information by means of a computer system or network.
 Any contract for the sale or conveyance of immovable property or any interest in such property;
 Any such class of documents or transactions as may be notified by the Central Government.
Cases Studies –
1. Section 43 – Penalty and Compensation for damage to computer, computer system, etc
Case: Mphasis BPO Fraud: 2005, first ever reported BPO Scam to be reported. In December 2004, four call centre employees, working at an outsourcing facility
operated by Mphasis in India, obtained PIN codes from four customers of Mphasis’ client, Citi Group. These employees were not authorized to obtain the PINs. In
association with others, the call centre employees opened new accounts at Indian banks using false identities. Within two months, they used the PINs and account
information gleaned during their employment at Mphasis to transfer money from the bank accounts of Citi Group customers to the new accounts at Indian banks.
By April 2005, the Indian police had tipped off to the scam by a U.S. bank, and quickly identified the individuals involved in the scam. Arrests were made when those
individuals attempted to withdraw cash from the falsified accounts, $426,000 was stolen; the amount recovered was $230,000.
Verdict: Court held that Section 43(a) was applicable here due to the nature of unauthorized access involved to commit transactions.
2. Section 65 – Tampering with Computer Source Documents
Case: Syed Asifuddin and Ors. Vs. The State of Andhra Pradesh 2006 (1) ALD Cri 96, 2005 CriLJ 4314 In this case, Tata Indicom employees were arrested for
manipulation of the electronic 32- bit number (ESN) programmed into cell phones theft were exclusively franchised to Reliance Infocomm. Verdict: Court held that
tampering with source code invokes Section 65 of the Information Technology Act.
3. Section 66 – Computer Related offenses
Case: Kumar v/s Whiteley In this case the accused gained unauthorized access to the Joint Academic Network (JANET) and deleted, added files and changed the
passwords to deny access to the authorized users. Investigations had revealed that Kumar was logging on to the BSNL broadband Internet connection as if he was the
authorized genuine user and ‘made alteration in the computer database pertaining to broadband Internet user accounts’ of the subscribers. The CBI had registered a
cyber crime case against Kumar and carried out investigations on the basis of a complaint by the Press Information Bureau, Chennai, which detected the unauthorised
use of broadband Internet. The complaint also stated that the subscribers had incurred a loss of Rs 38,248 due to Kumar’s wrongful act. He used to ‘hack’ sites from
Bangalore, Chennai and other cities too, they said.
Verdict: The Additional Chief Metropolitan Magistrate, Egmore, Chennai, sentenced N G Arun Kumar, the techie from Bangalore to undergo a rigorous imprisonment
for one year with a fine of Rs 5,000 under section 420 IPC (cheating) and Section 66 of IT Act (Computer related Offense).
4. Section 66A – Punishment for sending offensive messages through communication service
Case #1: Fake profile of President posted by imposter On September 9, 2010, the imposter made a fake profile in the name of the Hon’ble President Pratibha Devi
Patil. A complaint was made from Additional Controller, President Household, President Secretariat regarding the four fake profiles created in the name of Hon’ble
President on social networking website, Facebook.The said complaint stated that president house has nothing to do with the facebook and the fake profile is misleading
the general public. The First Information Report Under Sections 469 IPC and 66A Information Technology Act, 2000 was registered based on the said complaint at the
police station, Economic Offences Wing, the elite wing of Delhi Police which specializes in investigating economic crimes including cyber offences.
Case #2: Bomb Hoax mail In 2009, a 15-year-old Bangalore teenager was arrested by the cyber crime investigation cell (CCIC) of the city crime branch for allegedly
sending a hoax e-mail to a private news channel. In the e-mail, he claimed to have planted five bombs in Mumbai, challenging the police to find them before it was too
late. At around 1p.m. on May 25, the news channel received an e-mail that read: “I have planted five bombs in Mumbai; you have two hours to find it.” The police,
who were alerted immediately, traced the Internet Protocol (IP) address to Vijay Nagar in Bangalore. The Internet service provider for the account was BSNL, said
officials.
5. Section 66C – Punishment for identity theft
Case: The CEO of an identity theft protection company, Lifelock, Todd Davis’s social security number was exposed by Matt Lauer on NBC’s Today Show. Davis’
identity was used to obtain a $500 cash advance loan. Li Ming, a graduate student at West Chester University of Pennsylvania faked his own death, complete with a
forged obituary in his local paper. Nine months later, Li attempted to obtain a new driver’s license with the intention of applying for new credit cards eventually.
6. Section 66D – Punishment for cheating by impersonation by using computer resource
Case: Sandeep Vaghese v/s State of Kerala
A complaint filed by the representative of a Company, which was engaged in the business of trading and distribution of petrochemicals in India and overseas, a crime
was registered against nine persons, alleging offenses under Sections 65, 66, 66A, C and D of the Information Technology Act along with Sections 419 and 420 of the
Indian Penal Code.
The company has a web-site in the name and and style www.jaypolychem.com' but, another web site www.jayplychem.org’ was set up in the internet by first accused
Samdeep Varghese @ Sam, (who was dismissed from the company) in conspiracy with other accused, including Preeti and Charanjeet Singh, who are the sister and
brother-in-law of `Sam’
Defamatory and malicious matters about the company and its directors were made available in that website. The accused sister and brother-in-law were based in Cochin
and they had been acting in collusion known and unknown persons, who have collectively cheated the company and committed acts of forgery, impersonation etc.
Two of the accused, Amardeep Singh and Rahul had visited Delhi and Cochin. The first accused and others sent e-mails from fake e-mail accounts of many of the
customers, suppliers, Bank etc. to malign the name and image of the Company and its Directors. The defamation campaign run by all the said persons named above has
caused immense damage to the name and reputation of the Company.
The Company suffered losses of several crores of Rupees from producers, suppliers and customers and were unable to do business.
7. Section 66E – Punishment for violation of privacy
Cases:
 Jawaharlal Nehru University MMS scandal In a severe shock to the prestigious and renowned institute – Jawaharlal Nehru University, a pornographic MMS clip
was apparently made in the campus and transmitted outside the university.Some media reports claimed that the two accused students initially tried to extort money
from the girl in the video but when they failed the culprits put the video out on mobile phones, on the internet and even sold it as a CD in the blue film market.
 Nagpur Congress leader’s son MMS scandal On January 05, 2012 Nagpur Police arrested two engineering students, one of them a son of a Congress leader, for
harassing a 16-year-old girl by circulating an MMS clip of their sexual acts. According to the Nagpur (rural) police, the girl was in a relationship with Mithilesh
Gajbhiye, 19, son of Yashodha Dhanraj Gajbhiye, a zila parishad member and an influential Congress leader of Saoner region in Nagpur district.
 8. Section-66F Cyber Terrorism
Case: The Mumbai police have registered a case of ‘cyber terrorism’—the first in the state since an amendment to the Information Technology Act—where a threat
email was sent to the BSE and NSE on Monday. The MRA Marg police and the Cyber Crime Investigation Cell are jointly probing the case. The suspect has been
detained in this case.The police said an email challenging the security agencies to prevent a terror attack was sent by one Shahab Md with an
ID sh.itaiyeb125@yahoo.in to BSE’s administrative email ID corp.relations@bseindia.com at around 10.44 am on Monday.The IP address of the sender has been traced
to Patna in Bihar. The ISP is Sify. The email ID was created just four minutes before the email was sent. “The sender had, while creating the new ID, given two mobile
numbers in the personal details column. Both the numbers belong to a photo frame-maker in Patna,’’ said an officer.
Status: The MRA Marg police have registered forgery for purpose of cheating, criminal intimidation cases under the IPC and a cyber-terrorism case under the IT Act.
9. Section 67 – Punishment for publishing or transmitting obscene material in electronic form
Case: This case is about posting obscene, defamatory and annoying message about a divorcee woman in the Yahoo message group. E-mails were forwarded to the
victim for information by the accused through a false e- mail account opened by him in the name of the victim. These postings resulted in annoying phone calls to the
lady. Based on the lady’s complaint, the police nabbed the accused. Investigation revealed that he was a known family friend of the victim and was interested in
marrying her. She was married to another person, but that marriage ended in divorce and the accused started contacting her once again. On her reluctance to marry him
he started harassing her through internet.
Verdict: The accused was found guilty of offences under section 469, 509 IPC and 67 of IT Act 2000. He is convicted and sentenced for the offence as follows:
(a) As per 469 of IPC he has to undergo rigorous imprisonment for 2 years and to pay fine of Rs.500/-
(b) As per 509 of IPC he is to undergo to undergo 1 year Simple imprisonment and to pay Rs 500/-
(c) As per Section 67 of IT Act 2000, he has to undergo for 2 years and to pay fine of Rs.4000/-
All sentences were to run concurrently. The accused paid fine amount and he was lodged at Central Prison, Chennai. This is considered the first case convicted under
section 67 of Information Technology Act 2000 in India.
10. Section 67B – Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc. in electronic form
Case: Janhit Manch & Ors. v. The Union of India 10.03.2010 Public Interest Litigation: The petition sought a blanket ban on pornographic websites. The NGO had
argued that websites displaying sexually explicit content had an adverse influence, leading youth on a delinquent path.
11. Section 69 – Powers to issue directions for interception or monitoring or decryption of any information through any computer resource
Case: In August 2007, Lakshmana Kailash K., a techie from Bangalore was arrested on the suspicion of having posted insulting images of Chhatrapati Shivaji, a major
historical figure in the state of Maharashtra, on the social-networking site Orkut.The police identified him based on IP address details obtained from Google and Airtel
-Lakshmana’s ISP. He was brought to Pune and detained for 50 days before it was discovered that the IP address provided by Airtel was erroneous. The mistake was
evidently due to the fact that while requesting information from Airtel, the police had not properly specified whether the suspect had posted the content at 1:15 p.m.
Verdict: Taking cognizance of his plight from newspaper accounts, the State Human Rights Commission subsequently ordered the company to pay Rs 2 lakh to
Lakshmana as damages. The incident highlights how minor privacy violations by ISPs and intermediaries could have impacts that gravely undermine other basic human
rights.
Common Cyber-crime scenarios and Applicability of Legal Sections
 Harassment via fake public profile on social networking site: A fake profile of a person is created on a social networking site with the correct address, residential
information or contact details but he/she is labelled as ‘prostitute’ or a person of ‘loose character’. This leads to harassment of the victim. Provisions Applicable:-
Sections 66A, 67 of IT Act and Section 509 of the IPC
 Online Hate Community: Online hate community is created inciting a religious group to act or pass objectionable remarks against a country, national figures etc.
Provisions Applicable: Section 66A of IT Act and 153A & 153B of the Indian Penal Code.
 Email Account Hacking: If victim’s email account is hacked and obscene emails are sent to people in victim’s address book. Provisions Applicable:- Sections 43,
66, 66A, 66C, 67, 67A and 67B of IT Act.
 Credit Card Fraud: Unsuspecting victims would use infected computers to make online transactions. Provisions Applicable:- Sections 43, 66, 66C, 66D of IT Act
and section 420 of the IPC.
 Web Defacement: The homepage of a website is replaced with a pornographic or defamatory page. Government sites generally face the wrath of hackers on
symbolic days. Provisions Applicable:- Sections 43 and 66 of IT Act and Sections 66F, 67 and 70 of IT Act also apply in some cases.
 Introducing Viruses, Worms, Backdoors, Rootkits, Trojans, Bugs: All of the above are some sort of malicious programs which are used to destroy or gain access to
some electronic information. Provisions Applicable:- Sections 43, 66, 66A of IT Act and Section 426 of Indian Penal Code.
 Cyber Terrorism: Many terrorists are use virtual(G Drive, FTP sites) and physical storage media(USB’s, hard drives) for hiding information and records of their
illicit business. Provisions Applicable: Conventional terrorism laws may apply along with Section 69 of IT Act.
 Online sale of illegal Articles: Where sale of narcotics, drugs weapons and wildlife is facilitated by the Internet Provisions Applicable:- Generally conventional
laws apply in these cases.
 Cyber Pornography: Among the largest businesses on Internet. Pornography may not be illegal in many countries, but child pornography is. Provisions
Applicable:- Sections 67, 67A and 67B of the IT Act.
 Phishing and Email Scams: Phishing involves fraudulently acquiring sensitive information through masquerading a site as a trusted entity. (E.g. Passwords, credit
card information) Provisions Applicable:- Section 66, 66A and 66D of IT Act and Section 420 of IPC
 Theft of Confidential Information: Many business organizations store their confidential information in computer systems. This information is targeted by rivals,
criminals and disgruntled employees. Provisions Applicable:- Sections 43, 66, 66B of IT Act and Section 426 of Indian Penal Code.
 Source Code Theft: A Source code generally is the most coveted and important “crown jewel” asset of a company. Provisions applicable:- Sections 43, 66, 66B of
IT Act and Section 63 of Copyright Act.
 Tax Evasion and Money Laundering: Money launderers and people doing illegal business activities hide their information in virtual as well as physical activities.
Provisions Applicable: Income Tax Act and Prevention of Money Laundering Act. IT Act may apply case-wise.
 Online Share Trading Fraud: It has become mandatory for investors to have their demat accounts linked with their online banking accounts which are generally
accessed unauthorized, thereby leading to share trading frauds. Provisions Applicable: Sections 43, 66, 66C, 66D of IT Act and Section 420 of IPC
 The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH)
The Act was passed by the Parliament and came into force from 9 th December 2013. It was enacted to ensure a safe working environment for women. It provides for
protection of women at their workplace from any form of sexual harassment and for redressal of any complaints they may have launched. The Act was formed on the
basis of the guidelines laid down by the Supreme Court in its landmark judgement, Vishakha v. State of Rajasthan (1997) 6 SCC 24 (where sexual harassment was first
defined) but is much wider in scope, bringing within its ambit the domestic worker as well.
The Act will ensure that women are protected against sexual harassment at all work places, be it public or private, organised or even the unorganised sector, regardless of
their age and status of employment. The act also covers students in schools and colleges, patients in hospital as well as a woman working in a dwelling place or a house.
‘Sexual Harassment’ is defined as any advances to establish physical contact with a woman, a demand or request for sexual favours, making sexually coloured remarks,
showing pornography or any other form of physical, verbal or non-verbal conduct of sexual nature. The following circumstances amongst others constitute may also
constitute as forms of sexual harassment, – implied or explicit promise of preferential/detrimental treatment at the workplace, implied or explicit threat about her present
or future employment status, interference with her work and/or creating an intimidating or offensive or hostile work environment for her, and humiliating treatment likely
to affect her health or safety.
The Act creates a mechanism for redressal of complaints and safeguards against false or malicious charges. Under the act, employers who employ 10 employers or more
and local authorities will have to set up grievance committees to investigate all complaints. Employers who fail to comply will be punished with a fine that may extend
to Rs. 50,000. If, however, they still fail to form a Committee, they can be held liable for a greater fine and may even lead to cancellation of their business license. Every
employer with a business or enterprise having more than 10 workers will have to constitute a committee known as ‘Internal Complaints Committee’(ICC) (As per
Repealing and Amending Act, 2016, the nomenclature of Internal Complaints Committee was changed to Internal Committee) to look into all complaints of sexual
harassment at the workplace. Further, in every district, a public official called the District Officer will constitute a committee known as the ‘Local Complaints Committee’
(LCC) to receive complaints against establishments where there is no Internal Complaints Committee or there being a complaint against the employer himself. This
committee would further handle all complaints of sexual harassment in the domestic sphere as well as those coming from the unorganised sector.
Key Obligations of the Employer –
a) Constitution of the Internal Complaints Committee: Every employer, with more than 10 employees, shall constitute an ‘Internal Committee’ at the workplace and
if located at different places, he will, constitute a committee in all such offices and administrative units.
Membership of the Internal Complaints Committee:
(i) nominated by the employer
(ii) A Presiding Officer who shall be a woman employed at a senior level at the workplace, if not available at one office then another office senior member.
(iii) At least 2 members from amongst the employees either committed to cause of women or who have experience in social work or have legal knowledge.
(iv) One member from a Non-Governmental Organisation or association committed to the cause of women and familiar with the issues relating to sexual
harassment. This member shall not be part of the employer’s enterprise. Provided that one-half of the total members must be women.
The Presiding Officer and Members of the Internal Committee hold office for 3 years from the date of the nomination as specified by the employer. The member
from the NGO or association shall be paid such fees or allowance, by the employer, as may be prescribed. The details of the complaints are confidential and if any
member of the Committee, be it the Presiding Officer, discloses any details of the same to the media or press or makes it public in any way, will be liable for immediate
disqualification from the Committee. Further, if any member has been convicted or accused of any offence under any law, has been found guilty in any disciplinary
proceeding/has a disciplinary proceeding pending against him as per any law or has abused his position in any manner, he/she shall be removed from the Committee.
For all establishments having less than 10 workers, or for a COMPLAINT AGAINST HER EMPLOYER, the aggrieved woman will approach the Local Complaints
Committee which is a body to check instances of sexual harassment at the district level.
Every complaint must be given in writing to the Internal Complaint Committee within a period of 3 months, from the date of the incident. An extension of a period
3 months can be granted to the woman if she, due to certain circumstances, is unable to file the complaint or is prevented from doing so. If however, she is unable to
lodge the complaint due to physical or mental incapacity or death; her legal heirs may do so.
b) Preparation of an Annual Report by the employer: The Act casts a duty on employers to include information pertaining to the number of cases filed and disposed
of by them in their Annual Report. Organisations which are not under a requirement to prepare an Annual Report have to furnish this information directly to the Local
Complaints Committee, which will prepare an Annual Report of its own to be forwarded to the appropriate government.
Procedure to Resolve A Complaint –
The following are the guidelines that need to be followed by the members of the IC:
(a) When the IC receives a complaint, it must seek to resolve the issue by way of conciliation if the complainant so wishes. However, no monetary settlement can be the
basis of the conciliation. If there is a settlement, a report must be sent by the Committee, to the employer to take action in accordance with the recommendations of
the Committee.
(b) If, however no conciliation can be met with, the IC must start an inquiry into the complaint. All inquiries must be completed within 90 days. However, in case of a
domestic worker, the LCC must transfer the complaint to the police, within 7 days of the complaint, for registering the case u/s 509, or any other relevant section, of
the Indian Penal Code, if according to them a prima facie case exists.
(c) For the purposes of making an inquiry, the IC shall have similar powers as of a Civil Court – it can summon and enforce attendance of any person, examine him on
oath, order production of documents, etc.
(d) During the pendency of the inquiry interim relief may be granted to the aggrieved woman. The IC may recommend the employer to –
- Transfer the aggrieved woman or the respondent to any other workplace.
- Grant leave to the aggrieved woman up to a period of 3 months.
- Grant such other relief as may be prescribed.
(e) On completion of the inquiry, the committee must submit its recommendations to the employer, within 10 days. The employer must act on those recommendations
within 60 days in accordance with the conclusions of the inquiry.
Actions that can be taken by the employer after inquiry –
If the respondent is found not guilty, the inquiry will end. If, however, his guilt is proven, then the employer must:
 Deduct an appropriate sum from the salary/ wages of the person who has engaged in sexual harassment, which can be paid to the aggrieved woman/ to her legal heirs.
 Take action for sexual harassment as misconduct in accordance with the service rules applicable to the respondent (in case of a government agency). In case of private
organizations, the employer can take such actions including a written apology, warning, reprimand or censure, withholding of promotion, pay rise or increments,
terminating the respondent from service or carrying out community service or counselling session.
False and malicious complaints: If the IC/ LCC is of the view that a malicious/ false complaint has been made, it may recommend that a penalty be levied on the
complainant in accordance with applicable service rules. However, an inquiry must be made in order to establish malicious intent. Also, mere inability to substantiate a
complaint will not attract action under this provision.
Consequences of non-compliance with the Act: Employers who fail to comply will be punished with a fine that may extend to Rs. 50,000. If any employer who has
been convicted earlier of an offence subsequently commits a repeat offence, he will be liable for twice the punishment, which may have been imposed on a first conviction.
Further, his license for carrying on business may even be cancelled.
In Apparel Export Promotion Council vs A.K. Chopra on 20 January, 1999, SC 110, the SC referred to the Convention of Elimination of all forms of Discrimination
Against Women (CEDAW), and also the gender equality under the constitution of India. The Court observed:
“There is no gainsaying that each incident of sexual harassment, at the place of work, results in violation of the Fundamental Right to Gender Equality and the Right to
Life and Liberty the two most precious Fundamental Rights guaranteed by the Constitution of India. As early as in 1993 at the ILO Seminar held at Manila, it was
recognized that sexual harassment of woman at the work place was a form of gender discrimination against woman. In our opinion, the contents of the fundamental rights
guaranteed in our Constitution are of sufficient amplitude to encompass all facets of gender equality, including prevention of sexual harassment and abuse and the Courts
are under a constitutional obligation to protect and preserve those fundamental rights.”
GLOBL CONVENTION- NEED OF THE HOUR
• This past year, the #Me-Too movement has seen celebrities, politicians, journalists and many high-profile people discuss experiences of sexual harassment and violence
in the workplace – in all their multiple forms, including psychological abuse and intimidation.
• But what we must keep in mind is that, from the factory floor to the boardroom, violence and harassment against women in the workplace transcends borders, salary
brackets and levels of job security.
• Without an international agreement – a global convention, in other words – on workplace sexual harassment and violence, we cannot adequately address prevention
nor provide appropriate support for survivors.
• Conventions can accelerate national legislation and regulation, and can mobilize authorities, businesses and society to address a widespread problem. The question isn’t
whether we need a global treaty to protect women from the endemic issue of abuse and harassment at work, but rather, why we don’t yet have one.
TIME TO BUILD A NEW NORMAL
1. Understanding sexual harassment as a matter of sex and gender inequalities that intersect with other dimensions of inequality including race and ethnicity, age,
disability and sexual orientation; It is a violation of human rights;
2. Recognition that sexual harassment has much in common with other sexual abuse, whether it happens in conflict, the home, the street or elsewhere;
3. The crafting of a culture of intolerance of sexual harassment,
4. Prompt, appropriate, and publicly disseminated sanctions against perpetrators, regardless of their status or seniority;
5. Recognize that those who report sexual harassment in fact help authorities and refuse to pre-judge them as untrustworthy or malicious;
6. Implement multiple and publicized avenues for reporting;
7. Acknowledging that sexual harassment runs the range from looks to rape, recognize the harm and trauma it can bring and structure all interventions to support healing
and change. A victim focus requires setting out their rights.
 WOMEN UNDER INDIAN PENAL CODE, 1860

SECTION 304-B DOWRY DEATH

The problem of Dowry has always been persistent in India and is also rising at a rapid rate Dowry demands can go on for years together. In the worst cases, wives are
simply killed to make way for a new financial transaction—that is, another marriage. The Section 304-B, IPC has been inserted by the Dowry Prohibition Amendment
Act, 1986 with a view of combating increased menace of dowry deaths. The Supreme Court in the case of State of Himachal Pradesh v. Nikku Ram (1995) interestingly
started off the judgment with the words ‘Dowry, dowry and dowry’. The Supreme Court went on to explain why it has mentioned the words ‘dowry’ thrice. This is
because demand for dowry is made on three occasions: (i) before marriage; (ii) at the time of marriage; and (iii) after the marriage.
Under the Dowry Prohibition Act, the term “dowry” means any property or valuable security given or agreed to be given either directly or indirectly-
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;
at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the
Muslim Personal Law (Shariat) applies.
To invoke Section 304B of the Indian Penal Code the following ingredients are essential:
1. The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances.
2. Such a death should have occurred within seven years of her marriage.
3. She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
4. Such cruelty or harassment should be for or in connection with the demand of dowry.
5. Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
LEADING CASES ON DOWRY
1. In S. Gopal Reddy v. State of Andhra Pradesh, (1996): The Apex Court observed that “The definition of the expression ‘dowry’ contained in S. 2 of the Act cannot
be confined merely to the ‘demand’ of money, property or valuable security ‘made at or after the performance of marriage’…The legislature has in its wisdom while
providing for the definition of ‘dowry’ emphasized that any money, property or valuable security given as a consideration for marriage, ‘before, at or after’ the
marriage would be covered by the expression ‘dowry’ and this definition as contained in Section 2 has to be read wherever the expression ‘dowry’ occurs in the Act.”
2. Close relation of husband cannot be roped in the offence until an overt act is attributed to them beyond any reasonable doubt- Kans Raj v. State of Punjab, 2000.
In this case it was held that in the absence for demand dowry, mere taunting is capable to sustain conviction under section 304 B, IPC. Thus, taunting amounts to
cruelty and harassment.
3. Section 113 B of the Evidence Act, shifts the burden on the accused to prove that the victim was not subjected to cruelty or harassment soon before her death in
relation to demand for dowry. In the State of Andhra Pradesh Vs. Raj Gopal Asawa and Anr, (2004), the Supreme Court convicted the accused under section
304-B IPC, where the victim had committed suicide within seven years from her marriage and it was proved that she was subjected cruelty in relation to demand for
Dowry soon before her death. Therefore, under the provisions of Section 304-B, the argument that the husband or his relatives can be held liable only where they
have directly participated in the commission of the offence holds no ground.
4. In Tarsem Singh v. State of Punjab, 2009: The Court added that where the reason for the victim’s death is her husband’s ‘ego problem’, rather than any ‘demand
for dowry’, he cannot be convicted under section 304-B IPC.
5. In G.V. Siddaramesh Vs. State of Karnataka, (2010) 3 SCC 152, it held that cruelty could be either mental or physical and was difficult to precisely define because
of its relative nature. The Court sought to define “mental cruelty” as ‘such that if the wronged party continues to stay with his/her spouse there is reasonable
apprehension of injury to the wronged party’.
6. In Suresh Kumar v State of Punjab, 1994: It was contended that wife died of accident bursting of cooking medium. The doctor’s evidence was held to be crucial
as it said that if while cooking accident did take place then the stomach area would have burns as nearest to fire, which it was not. Police also found spilled kerosene
oil around the cooking area; hence it was not an accident.
7. In State of Punjab v. Iqbal Singh and Others (1991): The Court observed that crimes are generally committed in privacy and in secrecy; therefore, making it
difficult to get independent direct evidence in such cases. Section 304-B does not define cruelty and that is why the legislature has, by introducing Sections 113A and
113B in the Evidence Act, tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundational facts are established leading to
the unfortunate event within seven years of the marriage. There should be a nexus between harassment and any unlawful demand for dowry.
8. In Sanjay Kumar Jain v State of Delhi, 2011: The appellants conviction was not sustained under 302 IPC, but under 304 B, he was subjected to 9 years of RI with
Rs.10,000 fine and if fine was not given then 2 months more imprisonment.
9. In Sham Lal Vs. State of Haryana Etc. (1997) – The wife of the appellant died of burns for which the appellant, his father and grandmother were charged. Although
at trial the appellant was convicted under Sections 302, 304-B and 498-A IPC, the High Court upheld only his conviction under Section 302. The Supreme Court
went on to overturn this conviction and further held that the appellant could not be convicted of the Section 304-B offence. This was because the prosecution only
established cruelty and harassment towards the victim in connection with demands for dowry roughly one and a half years before her death. This was insufficient to
satisfy the ‘soon before’ requirement.
10. S 304 B and 498 – A Relationship: Though ‘cruelty’ is the common essential in both Section 498-A (matrimonial cruelty), and section 304- B (dowry death), the
courts have taken the stand that both these sections are not mutually inclusive but constitute distinct offences and that persons acquitted under section 304-B IPC can
be convicted under section 498-A, IPC. [Satpal v. State of Haryana (1998)]
11. In Muthu Kutty & anr v. State Inspector of police T.N, (2005): The Court held that the dyling declaration needs to inspire the “full confidence of the Court in its
correctness.”
PROSTITUTION- (S. 372 – 373)
Acc. to the encyclopedia of social science, Prostitution means “the practice in which a female offers her body for promiscuous sexual intercourse for hire etc.” However,
Section 2(f) of the ITPA defines prostitution as “the sexual exploitation or abuse of persons for commercial purposes”. Article 23of the Constitution, prohibits trafficking
in every form including commercial sexual exploitation of women and girls.
Section 372: "Selling minor for purposes of prostitution, etc"
Whoever sells, lets to hire, or otherwise disposes of any person under the age of 18 years with intent that such person shall at any age be employed or used for the purpose
of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be employed or
used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine.
Explanations:
 When a female under the age of 18 years is sold, let for hire, or otherwise disposed of to a prostitute or to any person who keeps or manages a brothel, the person
disposing of such female shall, until the contrary is proved, be presumed to have disposed of her with the intent that she shall be used for the purpose of prostitution.
 For the purposes of this section 'illicit intercourse" means sexual intercourse between persons not united by marriage or by any union or tie which, though not amounting
to a marriage, is recognised by the personal law or custom of the community to which they belong.
Section 373: "Buying minor for purposes of prostitution, etc"
Whoever buys, hires or otherwise obtains possession of any person under the age of 18 years with intent that such person shall at any age be employed or used for the
purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, of knowing it to be likely that such person will at any age be
employed or used for any purpose, shall be punished (same as S. 372).
Section 377
Section 377 of the Indian Penal Code came into force more than a century and a half ago, in 1861, when India was still being ruled by the British. It was modelled on
Britain’s ‘Buggery Act’ of 1533, and criminalized “unnatural offences”. According to the act, “whoever voluntarily has carnal intercourse against the order of nature
with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine.”
Although the Act did not explicitly specify “gay sex” or any other consensual intercourse involve those who are not heterosexual, it was based on the idea that anything
other than normative heterosexual sex was “against the order of nature” and, therefore, criminal. Technically this covers forms of sex that are not considered “natural” for
heterosexuals, like oral or anal sex, as well as all forms of intercourse between homosexuals.
Background: A landmark judgement in Naz Foundation v Government of Delhi & Ors, (2010), the Delhi High Court declared Section 377 to be violative of fundamental
rights guaranteed by the Constitution “insofar as it criminalised consensual sexual acts of adults in private”. But a number of other groups, primarily religious, objected
to the Order of High Court and moved to the Supreme Court seeking the restoration of Section 377. This order of the Delhi High Court was challenged before the Supreme
Court in the case of Suresh Kumar Koushal and another v Naz Foundation & others 11 Dec 2013, overruled the Delhi High Court decision, saying essentially that it
was for Parliament to take a call on the matter, rather than the courts. Soon after, Naz Foundation filed a curative petition at the Supreme Court, with a five-judge
Constitution Bench.
Judgement: In four different but concurring opinions, the Supreme Court said that Section 377, as far as the aspect of criminalizing consensual homosexual sex goes,
runs contradictory to the Constitution. In consequence, the court has read down the provision and has declared all forms of consensual sex between competent adults to
be legal. This consent, the Court clarified, should be free consent without any coercion.
The five-judge bench has given an exhaustive judgement covering a gamut of Constitutional questions. The court has made it clear that Article 14 of the Constitution
guarantees equality before law and this applies to all classes of citizens. It has dismissed the position taken by a two-judge bench in 2013 that the LGBTQ community
constitute a minuscule minority and so there was no need to decrminalise homosexual sex. In this, the court said it was important that the rights of minority are protected
from majoritarian interference.
“An examination of Section 377 IPC on the anvil of Article 19(1)(a) reveals that it amounts to an unreasonable restriction, for public decency and morality cannot be
amplified beyond a rational or logical limit and cannot be accepted as reasonable grounds for curbing the fundamental rights of freedom of expression and choice of the
LGBT community. Consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or
morality.”
— Chief Justice Dipak Misra and Justice AM Khanwalkar.
What does Section 377 have to do with right to privacy?
In affirming the fundamental right to privacy in 2017, a nine-judge Supreme Court bench declared that bodily autonomy was an integral part of the right to privacy, which
in turn is an important facet of right to life guaranteed under Article 21. This bodily autonomy has within its ambit sexual orientation. The right to privacy judgement in
a way paved the way for decriminalizing homosexuality.
The court said:
“Within the compartment of privacy, individual autonomy has a significant space. Autonomy is individualistic. It is expressive of self-determination and such self-
determination includes sexual orientation and declaration of sexual identity. Such an orientation or choice that reflects an individual’s autonomy is innate to him/her. The
said identity under the constitutional scheme does not accept any interference as long as its expression is not against decency or morality. And the morality that is
conceived of under the Constitution is constitutional morality. Under the autonomy principle, the individual has sovereignty over his/her body.”
— Chief Justice Dipak Misra and Justice AM Khanwalkar.
But what about religious beliefs that prohibit LGBTQ relationships? Has Section 377 been completely removed?
All four opinions talk about the preeminence of Constitutional morality in India. The Constitution guarantees equal rights and this cannot be denied to any class of citizens
by giving precedence to public or religious morality. On this, the court said:
“LGBTQ individuals living under the threats of conformity grounded in cultural morality have been denied a basic human existence. They have been stereotyped and
prejudiced. Constitutional morality requires this Court not to turn a blind eye to their right to an equal participation of citizenship and an equal enjoyment of living.”
No. The section covered all unnatural offences. This means, this law will continue to apply to acts like bestiality.
Does this mean the LGBTQ community now has all rights of an ordinary citizen?
Yes. The court has declared this in principle. In his opinion, Justice DY Chandrachud said:
“Members of the LGBT community are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution. Members
of the LGBT community are entitled to the benefit of an equal citizenship, without discrimination, and to the equal protection of law.”
However, this does not mean the LGBTQ community will immediately get all the rights that have been so far denied to them. Rights like inheritance and marriage are
founded in laws that assume heterosexuality as the norm. These have to be changed by amending the individual laws. However, this judgement has opened the doors of
the Supreme Court for the community to enforce all fundamental rights and push the state to amend all laws to recognise their rights.
Does this mean all those convicted under Section 377 will be freed from jails?
Unfortunately, no. All cases that have been already settled will not be opened. However, the court has asked the lower judiciary to take into account the judgement in all
pending cases, even if the trial has begun in those cases.
Justice Indu Malhotra said:
“History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered
through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the
majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality.”
Outraging Modesty of Women- (S. 354)
To use force or even threaten to use force, against a woman, with the intention to 'outrage her modesty' is a crime. The police may arrest for such crimes without a warrant.
The law does not explain what 'outraging modesty' means. Courts usually make this determination by looking at all circumstances surrounding the incident. The Supreme
Court referred to 'modesty' as feminine decency and a virtue that women possess owing to their sex. The punishment is jail time of between one and five years along with
a fine.
Important: It is not enough that the victim's modesty is outraged. It is an offence only when the accused intended or knew it to be likely that the acts in question would
outrage the victim's modesty.
In Baldev Prasad Singh v State 1984 (Orissa): holding breast while embracing was held to be guilty of offence under S354 IPC.
According to Section 354-A: Sexual harassment means, any:
 Unwelcome touching or other physical contact
 Asking or demanding sex or any other sexual activity
 Making remarks which are sexual in nature
 Showing pornographic material which may include videos, magazines, books etc.
The difference between IPC & POSH –
 The IPC is not limited to sexual harassment at the workplace, but punishes such harassment done anywhere.
 The IPC makes it possible to file a criminal complaint if you have been sexually harassed, while the special law gives you the option of seeking civil remedies and
damages, involving your office administration.
 The punishment for the first three kinds of sexual harassment is three years as compared to the fourth type (making sexually coloured remarks) which is one year.
According to S. 354-B: Any man who assaults or uses criminal force to any women or abets such act with an intention of disrobing or compelling her to be naked shall
be punished with imprisonment of either description for the term which shall not be less than 3 years but which may extend to 7 years and shall also be liable to fine.
According to Section 354-C (Voyeurism): It is a crime to look at or capture (say by means of a photograph or video) a woman going about her private acts, where she
thinks that no one is watching her. This includes a woman:
 using a toilet, or
 who is undressed or in her underwear; or
 engaged in a sexual act.
The punishment is jail time of between one and three years along with a fine. If someone is found guilty of committing the same crime more than one time, the punishment
is jail time of between three and seven years along with a fine.
If the woman agrees to private photos, it is not a crime to take them. However, if she expects them to remain with only certain people, then sharing them is a crime. The
law makes it clear that the woman has to expressly consent to both, watching/taking pictures as well as sharing them, for it to not be an offence.
According to Section 354-D: Stalking means continuously following a woman or contacting her, either online or in person, where she has clearly shown she doesn't want
the attention. The section makes an exception if a person is stalking a woman as part of a legal duty to do so.
The punishment is jail time of up to three years along with a fine. If someone is found guilty of committing the same crime more than one time, the punishment is jail
time of up to five years along with a fine.
Cases –
 Vidyadharan v. State of Kerala [2003]: The Appellant faced trial for alleged commission of offences punishable under Sections 354 and 448 of IPC and Section 3
(1) (xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. He was convicted and sentenced to undergo three months and six months
custodial sentence for offences relatable to Section 448 IPC and Section 3 (1)(xi) of the Act respectively. No separate sentence was imposed for the other offence.
Aforesaid conviction and sentence were affirmed by the High Court.
 Union of India v. Himmat Singh Chauhan, 1998: The accused was court martialed for the offence under S 354, by complainant Mrs. Nirmala Sharma. The accused
aggrieved by the outcome appealed to the H.C who went through the evidence and let all charges drop against the accused petitioner. The SC held that re- appreciation
of evidence by the HC was overstepping its jurisdiction, when the accused respondent was rightly found guilty by the Court martial proceedings.
Kidnapping &Abduction (Sections 366, 366-A & 366B)
Kidnapping –
 Section 359 deals with ‘Kidnapping’. Acc. to IPC, Kidnapping can be classified as ‘Kidnapping from India’ or ‘Kidnapping from Lawful Guardianship’.
 Section 360 says that when a person is conveyed beyond the limits of India without that person’s consent, is said ‘Kidnapping from India’.
 Section 361 provides that when a person entices a minor (16 years for male and 18 years for female) or a person of unsound mind, the person so enticing will be held
liable for kidnapping such minor or person from lawful guardianship.
 In State of Haryana v. Raja Ram (1973), the accused induced the prosecutrix who was 14 years of age away from her lawful guardianship. The Supreme Court held
that the persuasion by the accused created a willing on the part of minor which kept her away from her lawful guardianship and therefore it amounted to ‘kidnapping’.
Abduction –
 S. 362. of IPC defines ‘Abduction’: a person either by force compels a person or induces another person to go from any place is said to abduct such person.
 In the case of Bahadur Ali v King Emperor AIR 1923 Lah 158., the accused misrepresented himself as a police constable and kept a girl in his house for a ransom of
Rs 600. The court held that his act amounted to abduction.
Difference between abduction and kidnapping –
 Age of the Aggrieved Person:
In case of Kidnapping, the age of the aggrieved person as according to Section 361 of the IPC is 16 in case of males and 18 in case of females. Whereas, in case of
Abduction, there is no such thing as age. Any person either by force has compelled or induced any other person to go from any place irrespective of the age, shall be
booked with abduction.
 Removal from Lawful Guardianship:
As Kidnapping takes into consideration the age of the person being kidnapped, the crime involves the taking away from the guardianship of a lawful person who has
been authorized by law to take care of such minor.
Since Abduction considers only the person who has been abducted, lawful guardianship does not come into the picture.
 Means:
Kidnapping involves taking away or enticement by the kidnapper. The means used for such purpose is irrelevant.
The means used in case of abduction may be force, compulsion, or deceitful means.
 Consent:
In case of Kidnapping, the consent of the person kidnapped is immaterial as the person being kidnapped is a minor and according to law, such person is unable to
provide for free consent. The consent obtained from the person shall be a tainted one.
In case of Abduction, the consent of the person abducted condones the accused from the offence so charged against him/her.
 The intention of the Accused:
 In case of Kidnapping, the intention of the person kidnapping a minor is immaterial so as to the crime committed by the accused (as in the case of Queen v Prince).
In case of Abduction, the intention of the person abducting is a very important factor in determining the guilt of the accused person.
 Continuity of the Crime:
Kidnapping is not a continuing offence. The offence is done as soon as the person accused removes the person from his/her lawful guardianship.
Abduction is a continuing process as the person so abducted is removed from one place to another.
 Punishment:
Types of Kidnapping Punishment Section of IPC
Kidnapping for purpose of begging 10 years + Fine 363A
Kidnapping in order to murder 10 years + Fine 364
Kidnapping for ransom 10 years + Fine 364A
Kidnapping with intent to wrongfully confine a person 7 years + Fine 365
Kidnapping so as to compel a woman to marry 10 years + Fine 366
Kidnapping so as to subject a person to grievous hurt 10 years + Fine 367
Kidnapping a child under 10 years of age in order to steal from a person 7 years + Fine 369

Types of Abduction Punishment Section of IPC

Abduction in order to murder 10 years + Fine 364
Abduction with intent to wrongfully confine a person 7 years + Fine 365
Abduction so as to compel a woman to marry 10 years + Fine 366
Abduction so as to subject a person to grievous hurt 10 years + Fine 367
Abducting a child under 10 years of age in order to steal from a person 7 years + Fine 369
Offenses relating to marriage (Sections 493- 498A IPC)
Chapter XX (section 493- 498), IPC, deals with offenses relating to marriage. All these offenses deal with infidelity within the institution of marriage in one way or
another. Chapter XX-A, containing only one section (s 498A) dealing with cruelty to a woman by her husband or his relatives to coerce her and her parents to meet the
material greed of dowry, was added to the IPC by the Criminal Law (Second Amendment) Act 1983.
The following are the main offenses under this chapter:
(2) Mock or Invalid Marriages (S.493 and 496):
Section 493-Cohabitation caused by a man deceitfully inducing a belief of lawful marriage: Every man who by deceit causes any woman who is not lawfully
married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment
of either description for a term which may extend to ten years, and shall also be liable to fine.
Case: State of Jharkhand Vs. Ram Chandra Bhagat [2006]
ANIL R. DAVE, J. held, “Upon perusal of the evidence we find that upon being acquainted with the complainant, the accused had developed a close relationship
with the complainant. He used to visit the complainant from time to time and he had promised the complainant to marry her. Upon perusal of the evidence, we further
find that the accused-appellant had got a form, with regard to marriage registration, signed by the complainant. The form was signed by the accused-appellant and he
also induced the complainant to sign the form so as to get married.
The form duly signed by both the persons had been exhibited and the signature of the appellant had been identified. The afore-stated fact made the complainant to
believe that the accused-appellant had married her and, therefore, she had started residing with him as his wife. In fact, the appellant did not marry the complainant…In
these circumstances, we dismiss the appeal.’
Section 496 - Marriage ceremony fraudulently gone through without lawful marriage: Whoever, dishonestly or with a fraudulent intention, goes through the
ceremony of being married, knowing that he is not thereby lawfully married, shall be punished with imprisonment of either description for a term which may extend
to seven years, and shall also be liable to fine.
The essential elements of both the sections i.e. 493 and 496, is that the accused should have practiced deception on the woman, as a consequence of which she is led
to believe that she is lawfully married to him, though in reality she is not. In s 493, the word used is ‘deceit’ and in s 496, the words ‘dishonestly’ and ‘fraudulent
intention’ have been used. Basically, both the sections denote the fact that the woman is cheated by the man into believing that she is legally wedded to him, whereas
the man is fully aware that the same is not true. The deceit and fraudulent intention should exist at the time of the marriage. Thus, mens rea is an essential element of
an offence under this section.
(3) Bigamy (S.494 and 495):
Section 494-Marrying again during lifetime of husband or wife
The important ingredients are:
 deceit or fraudulent intention
 causing of false belief
 cohabit or have sexual intercourse
Exception: This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to
any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been
continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person
contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so
far as the same are within his or her knowledge.
Section 495-Same offence with concealment of former marriage from person with whom subsequent marriage is contracted: Whoever commits the offence
defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be
punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
The essential ingredients are:
 existence of a previous marriage;
 second marriage to be valid;
 second marriage to be void by reason of first husband or wife living.
(4) Adultery (S.497): Only a man who has consensual sexual intercourse with the wife of another man without his consent can be punished under this offence in India.
If someone "lives in adultery", the partner can file for divorce. The law became defunct on 27 September 2018 by Supreme Court of India. The Supreme Court called
the law unconstitutional because it "treats a husband as the master.” Joseph Shine v Union of India WRIT PETITION
The Court in its initial observations noted that this was not the first petition challenging the section - debates and cases on this have been in motion since 1954, making
it important for the Court to decide on this question without much ado. It felt that laws are supposed to be gender neutral. However, in this case, it merely makes the
woman a victim and thus "creates a dent on the individual independent identity of the woman.
“Adultery can be treated as civil wrong for dissolution of marriage, but not criminal offence”. While pronouncing its judgment, the apex court said “Equality
is the governing principle of a system. Husband is not the master of the wife”.
The SC further said that “There can't be any social license which destroys a home”. The apex court's five-judge bench headed by Chief Justice Dipak Misra said the beauty
of the Constitution is that it includes "the I, me and you". Section 497 is held to be unconstitutional as adultery is manifestly arbitrary. Section 497 destructive of women's
dignity, self-respect as it treats women as chattel of husband.
Adultery is not a crime in countries like China, Japan and Australia. It dents individuality of women. It might not be cause of unhappy marriage, it could be result of an
unhappy marriage.
(5) Criminal elopement (S.498): Enticing or taking away or detaining with criminal intent a married woman – Whoever takes or entices away any woman who is
and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with
intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with both.
The essential ingredients are:
 takes or entices away
 woman to be a married woman
 knowledge
 taken from control of husband or person having care of her on behalf of her husband
 intention to have illicit intercourse
 conceals or detains such women
In Alamgir v. State of Bihar AIR 1969 SC 436, it was observed that if a man knowingly goes away with the wife of another in such a way to deprive the husband of
his control over her, with the intent to have illicit intercourse, then it would constitute an offence within the meaning of the section.
Cruelty by husband or relatives of husband (S.498-A)
Matrimonial Cruelty in India is a cognizable, non-bailable and non-compoundable offence. It is defined in Chapter XXA of I.P.C. under Section 498A as ‘Husband or
relative of husband of a woman subjecting her to cruelty’.
Section 498-A: Whoever being the husband or the relative of the husband of a woman, subjects her to cruelty shall be punished with imprisonment for a term, which may
extend to three years and shall also be liable to a fine.
“Cruelty” means:
a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether
mental or physical) of the woman; or
 b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demands for any property or
valuable security or is on account of failure by her or any person related to her to meet such demand.
Meaning of Cruelty
Cruelty includes both physical and mental torture. Wilful conduct in Explanation (a) to section 498A, I.P.C. can be inferred from direct and indirect evidence. Although
‘Cruelty’ is the common essential in both Section 498-A (matrimonial cruelty), and section 304- B (dowry death), the courts have taken the stand that both these sections
are not mutually inclusive but constitute distinct offences and that persons acquitted under section 304-B IPC can be convicted under section 498-A, IPC. [Satpal v. State
of Haryana (1998)]
The SC in Mohd. Hoshan vs. State of A.P. (2002) observed: “Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impact of
complaints, accusation or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the victim concerned, the social background, the
environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of the sensitivity, degree of courage and endurance to withstand
such cruelty. Each case has to be decided on its own facts whether mental cruelty is made out”.
Constitutional Validity of Section 498A
In Inder Raj Malik and others vs. Sunita Malik 1986 (2) Crimes 435, it was contended that this section is ultra vires Article 14 and Article 20 (2) of the Constitution.
There is the Dowry Prohibition Act, 1961 which also deals with similar types of cases; therefore, both statutes together create a situation commonly known as double
jeopardy. But Delhi High Court negatived this contention and held that this section does not create situation for double jeopardy. Section 498-A is distinguishable from
Section 4 of the Dowry Prohibition Act because in the latter mere demand of dowry is punishable and existence of the element of cruelty is not necessary, whereas section
498-A deals with an aggravated form of the offence. It punishes such demands of property or valuable security from the wife or her relatives as are coupled with cruelty
to her. Hence a person can be prosecuted in respect of both the offences punishable under section 4 of the Dowry Prohibition Act and this section. It was thus held that
though, this section gives wider discretion to the Courts in the matters of interpretation of the words occurring in the laws and also in matters of awarding punishment.
Thus, 498A is not ultra vires to Article 14 & 20(2) of the constitution. (Similar case: Polavarpu Satyanarayana v. Soundaravalli 1988)
In Surajmal Banthia & Anr. v. State of West Bengal (2003), the deceased was ill-treated and tortured for several days and was not given food several times. The Court
acknowledging that this is the treatment that several young brides face when they move out of their parents’ home and into the house of her in-laws, held the husband and
his father liable under 498A.
In Vijai Ratna Sharma v. State of Uttar Pradesh (1988), the Allahabad High Court took a pragmatic view in a criminal proceeding initiated by a dowry victim, by doing
away with jurisdictional technicalities in the matter. The court brushed aside the argument for the lack of jurisdiction on technical grounds and held that since from the
very beginning, the dowry demand had been present and subsequent behaviour was an ensuing consequence, all the offences can be tried together.
In Bhagwant Singh v. Commissioner of Police (1983), the SC held that the greed for dowry and the dowry system as an institution calls for the severest condemnation
by all sections.
Sec 498A and the Allegation of Misuse
The SC in Sushil Kumar Sharma vs. Union of India and others (2005), observed: “The object of the provision is prevention of the dowry menace. But as has been
rightly contented by the petitioner that many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases
acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question,
therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does
not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how
the makers of frivolous complaints or allegations can be appropriately dealt with.
The SC in its recent judgment in Arnesh Kumar v. State of Bihar and Anr SLP (2013), said that no arrest should be made immediately in the offences which are allegedly
committed by the accused and the offence is cognizable and non-bailable, with particular reference to S. 498A. It laid down certain guidelines for the police officers to
follow relating to the arrests made under the section, due to increase in number of false complaints:
 Police officers not to automatically arrest the accused when a case under 498-A IPC is registered. They should satisfy themselves about the necessity of arrest under
parameters flowing from Section 41 CrPC (the judgment lays down the parameters).
 Police officers shall fill the checklist (Section 41(1)(b)(ii) CrPC) and furnish the reasons and material necessitating the arrest.
 The Magistrate will authorise detention only after recording its satisfaction on the report furnished by the police officers.
 If the police officers fail to comply with the directions, they will be liable for departmental action as well as punishment for contempt of Court.
 Failure of the Judicial Magistrate to comply with the directions will render him liable for departmental action by the appropriate High Court.
In Rajesh Sharma v. State of U.P., (2017), the SC gave directions to prevent misuse of Section 498-A IPC which were further modified in Social Action Forum for
Manav Adhikar v. Union of India, (2018). These directions include:
a) Complaints under Section 498-A and other connected offences may be investigated only by a designated Investigating Officer of the area.
b) If a settlement is reached between the parties, it is open to them to approach the High Court under Section 482 seeking quashing of proceedings or any other order.
c) If a bail application is filed with at least one day’s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery
of disputed dowry items may not, by itself, be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected.
d) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine.
e) These directions will not apply in case of tangible physical injuries or death.
 Evolution of rape laws in India

The first time ‘rape’ was mentioned in our legal structure was when the IPC was enacted in 1860. Section 375 to Section 376E of the Indian Penal Code refers to sexual
offenses. It defined rape as sex without consent, with consent but under the fear of death or with consent but under false pretenses. It also defined ‘statutory rape’ as sex
with a woman under the age of 16.
The 1983 amendments followed from protests that occurred as a result of the Indian Supreme Court’s ruling on the controversial Mathura gang-rape case, Tukaram v.
State of Maharashtra, 1979: The case came for hearing on 1 June 1974 in the sessions court. The judgment found the defendants not guilty. It was stated that because
Mathura was 'habituated to sexual intercourse', her consent was voluntary; under the circumstances only sexual intercourse could be proved and not rape.
On appeal, the Nagpur bench of the Bombay High Court set aside the judgment of the Sessions Court, and sentenced the accused to one and five years imprisonment
respectively. The Court held that passive submission due to fear induced by serious threats could not be construed as consent or willing sexual intercourse.
However, the Supreme Court of India justices Jaswant Singh, Kailasam and Koshal in their judgement reversed the High Court ruling and again acquitted the accused
policemen. The Supreme Court held that Mathura had raised no alarm; and also that there were no visible marks of injury on her body thereby suggesting no struggle and
therefore no rape. The judge noted, "Because she was used to sex, she might have incited the cops (they were drunk on duty) to have intercourse with her".
In September 1979, only a few days after the verdict was pronounced, law professors Upendra Baxi, Raghunath Kelkar and Lotika Sarkar of was also involved in the
formation of the first feminist group in India against rape, "Forum Against Rape", later renamed ”Forum Against oppression of Women" and Vasudha Dhagamwar of
Pune wrote an Open Letter to the Supreme Court, protesting the concept of consent in the judgment. "Consent involves submission, but the converse is not necessarily
true...From the facts of case, all that is established is submission, and not consent...Is the taboo against pre-marital sex so strong as to provide a license to Indian police to
rape young girls.’
1983: The Criminal Law (Second Amendment)
Women’s groups held protests and marches, demanding a change in the law. This change came in 1983 to Section 114 (A) of the Indian Evidence Act. Until this point,
rapes by public servants had completely been ignored by our legal system. But with this case, a new category of rape called ‘Custodial Rape’ was introduced to include
rapes of women while in custody of public servants. While so far the woman had to prove that the sex was not consensual, this amendment said that a court should
presume a woman who says she did not consent is telling the truth. This made the idea of ‘consent’ an integral part of rape. Also, it was this amendment that banned the
publication of victims’ identity and prohibited the ‘character assassination’ of rape victims in court. It’s thanks to this amendment that rape victims now have pseudonyms
like ‘Nirbhaya’.
2002: Amendment To Indian Evidence Act
Another famous case Sakshi vs. Union of India 2000 significant in this regard. A NGO called Sakshi filed a Public Interest Litigation to redefine the term rape. In this
case the law commission of India was directed by the Supreme Court of India to respond to the specific issue raised in the petition. After several meetings and consultation
with Sakshi; The highlights of the 172 Law Commission Report are following below:
 Rape should be replaced by the term sexual assault.
 All form of penetration should come under the purview of Sexual intercourse as contained in 375 of Indian penal code.
In the year of 2002 an amendment of section 146 of the Indian Evidence Act has been made. According to this amendment, it does not allow any types of cross examination
of rape victims that directly or indirectly raised questions about the moral character of the rape victim also any types of question which is about the previous sexual
experience of the victims.
Judge’s note -
 It may be noted that ours is a vast and big country of over 100 crore people. Normally, the first reaction of a victim of crime is to report the incident at the police
station and it is the police personnel who register a case under the appropriate Sections of the Penal Code. Such police personnel are invariably not highly educated
people but they have studied the basic provisions of the Indian Penal Code and after registering the case under the appropriate sections, further action is taken by
them as provided in Code of Criminal Procedure. Indian Penal Code is a part of the curriculum in the law degree and it is the existing definition of "rape" as contained
in Section 375 IPC which is taught to every student of law. A criminal case is initially handled by a Magistrate and thereafter such cases as are exclusively triable by
Court of Session are committed the Court of Session. The entire legal fraternity of India, lawyers or Judges, have the definition as contained in Section 375 IPC
engrained in their mind and the cases are decided on the said basis. The first and foremost requirement in criminal law is that it should be absolutely certain and
clear. An exercise to alter the definition of rape, as contained in Section 375 IPC, by a process of judicial interpretation, and that too when there is no ambiguity in
the provisions of the enactment is bound to result in good deal of chaos and confusion, and will not be in the interest of society at large.-
 Another reason why women refrained from reporting rape was the dreaded 2-finger test, in which a medical examiner inserts ‘2 fingers’ into the vagina to check its
laxity. This test made women feel like objects in evidence, violating her privacy and integrity, instead of treating her like a trauma victim. Since cross-examination
was out, medical examination became central to the case and therefore, this test couldn’t be prohibited. However, practitioners examining the victim had to provide
all the necessary information to the victim and explain why the tests are essential, to not discourage anyone from filing a rape case.
2012: Protection of Children From Sexual Offences (POSCO) Act
Statistics indicated that India saw a 336% increase in child rape cases from 2001 to 2011. The National Crime Record Bureau statistics state that 48,338 child rape cases
were recorded during this period. This alarming trend led to the need for a ‘special legal procedure’ for child victims of sexual offences. So far, the only mention of sexual
offences against children was the ‘statutory rape’ clause mentioned in the IPC that criminalized sexual intercourse with a girl below the age of 16, regardless of consent.
However, the process of trying such a case was no different from a case that involved someone over 16. The resultant POSCO Act understood the special situations in
which a child could be assaulted. For example, recognizing that the perpetrator might be someone close to the child or his/her guardian, the Act made the police in charge
of protecting the child during the investigative process.
Now the police would have to make sure the child received protection (by placing the child in a shelter home) and providing emergency medical treatment. It also provided
for special courts that could conduct the trial in-camera and without revealing the identity of the child, keeping it as child-friendly as possible. The Act said that cases of
child sexual abuse should be fast-tracked within a year and that reporting such cases should be mandatory. That way, it’s the legal duty of anyone who knows of the
offence to report it. Another big loophole was that it did not specifically mention crimes against male-children. This loophole was rectified in 2012 with POSCO or the
Protection of Children from Sexual Offences Act. The new Act was gender-neutral and recognized other forms of penetration apart from peno-vaginal penetration. The
Act also included the abetment of child sexual abuse as an offence and included non-penetrative assault, sexual harassment and child pornography.
2013: Criminal Law (Amendment) Act
On December 16, 2012, a 23-year-old physiotherapy intern, Nirbhaya, was brutally gang-raped in a moving bus. After struggling to survive in the hospital, she succumbed
to her injuries on December 28. The brutality and violence of the case led to widespread protests around the country.
The public wasn’t only demanding a change in the law, but also a change in how the crime of rape was looked at. This was a turning point for anti-rape laws in India –
now it wasn’t just a violent crimes issue but it was also a women’s rights issue. This forced the legal system of India to reconsider the existing laws and led to the
realization that many other crimes that were specifically against women like stalking, acid attacks, and voyeurism were missing from our legal framework.
This led to the 2013 Criminal Law Amendment. Under this change, new offences such as stalking, acid attacks, and voyeurism were added into the definition of rape.
Even the threat of rape is now a crime. The minimum sentence was changed from seven years to 10 years. In cases that led to the death of the victim or the victim being
in a vegetative state, the minimum sentence was increased to 20 years. This was the first time the vegetative state was included since the landmark Aruna Shanbaug case.
While the Nirbhaya case was on trial, the character of the victim came into play even with the 1983 and 2002 amendments in force. Considering how public this case
was, a lot of the character assassination came from outside of court, from TV debates and Parliament discussions. Since the victim was a young professional, her
independence and ‘western’ lifestyle were treated as ‘invitations’ for rape. To avoid this in the future, this amendment reiterated that the ‘character of the victim’ was
totally irrelevant to rape cases.
Since one of the accused in this case was a juvenile and ended up being tried as such, another flaw in the system was identified. So, the age for being tried as an adult for
violent crimes like rape and murder was changed from 18 to 16, that to the Juvenile Justice Act.
2018: Criminal Law (Amendment) Ordinance
In January 2018, an 8-year-old girl named Asifa Bano was raped and murdered in the district of Kathua in Jammu and Kashmir. Seven people were named in the charge-
sheet, four of whom were police officers charged for attempting to cover up the case. The main accused, Sanji Ram, is a priest at the temple where the rape evidently took
place. His nephew and son, both juveniles, were also accused.
This case led to national outrage, especially because it was against a child, but also because it took place in a temple and was perpetrated by a priest. It quickly became
politicised along the Hindu-Muslim lines. An almost immediate policy change with this Ordinance only 3 months after the incident. This change was mainly made to
POSCO since it was against a child.
The Amendment’s –
 The Criminal Law (Amendment) Bill 2018 enhances the minimum sentence for offence of rape against girl children of all three age categories. Under new law, if the
victim is under 12 years of age, the culprit faces minimum sentence of 20 years, up from 10 years previously. The maximum punishment is death penalty.
 In the cases of gangrape of child under 12, the minimum punishment is life sentence (earlier 20 years) while the maximum is death penalty.
 In cases of child aged between 12 and 16, the offence of rape is punishable with the minimum sentence of 20 years, up from 10 years. Maximum punishment in such
cases is life imprisonment. If a girl aged between 12 and 16 is gangraped, the convict faces minimum punishment of life sentence.
 If the victim is aged between 16 and 18, the offence of rape is punishable with minimum punishment of 10-year jail term and maximum is life imprisonment.
 Repeat offenders will be punished with life imprisonment or death.
 The Bill provides for time-bound investigation in cases of rape of girl children. The investigation into rape of a child must be completed within two months.
 The case is to be tried in a fast track court. The Bill states that any appeal against a sentence by the trial court must be disposed of within six months.
 Accused is not entitled to anticipatory bail, under new law, in offences of rape of child less than 16 years of age.
 MARITAL RAPE
Independent Thought v. Union of India
 The most recent change came through the Supreme Court’s decision under Independent Thought vs. Union of India in October 2017. The case was filed as a Public
Interest Litigation by the non-governmental organization, Independent Thought, to protect child brides from marital rape. Exception 2 under Section 375 of the Indian
Penal Code provides an exemption to rape for men having sexual intercourse with their wives under the age of fifteen. In Independent Thought, Supreme Court Justices
Madan B. Lokur and Deepak Gupta rationalized that Indian Penal Code, Section 375, Exception 2 should not apply to child brides between the ages of fifteen and
seventeen. The Court held that Exception 2 creates an arbitrary and discriminatory distinction between a married girl child and an unmarried girl child. The
Supreme Court offered well-supported and rational arguments to defend its decision to change the exception from “under fifteen years of age” to “under eighteen years
of age. The Court stipulated that the distinction between the married girl child and the unmarried girl child is contrary to the spirit of the Constitution of India (“the
Constitution”), specifically Article 15(3) and Article 21.
 The concurring judgment also pointed out equal protection clause under Article 14 of the Constitution. Similarly, the Court identifies that the Constitution and the
Protection of Human Rights Act, 1993, guarantee liberty and dignity as protected rights and to allow a man to engage in forced sexual intercourse with his child bride
would be a violation of these rights. The Supreme Court also recognized the importance of a woman’s autonomy over her own body, her right to bodily integrity,
and her right to privacy. Furthermore, the Court pointed out the inconsistencies that arise from the fact that husbands can be charged with lesser sexual crimes, while
enjoying an exemption from the much more serious crime of rape. Lesser crimes for which the husband can be prosecuted include intent to outrage her modesty,
sexual harassment, assault or use of criminal force against woman with the intent to disrobe, voyeurism, and stalking. There are no marital exception clauses
associated with any of these crimes. The decision under Independent Thought v. Union of India was a milestone for advocates in furthering the fight against marital
rape.
Arguments against Criminalization of Marital Rape
1. Adequate Legal Recourse Against Marital Rape Already Exists Many proponents of maintaining the marital rape exception state that the gap created by the
exception has been filled by the Protection of Women from Domestic Violence Act of 2005, Section 498A of the Indian Penal Code, and the Hindu Marriage Act.
2. Cultural Relativism At the forefront of the fight against criminalization is the argument that the concept of marital rape cannot work in India due to the stark cultural
differences between the prevalent culture in India and the concept of marriage in the West. The argument put forth is that social customs and values, religious beliefs,
and the idea of marriage as a sacrament along with the staggering rate of poverty, illiteracy, and lack of education, all create an environment in India that is not
conducive for the criminalization of marital rape. Proponents of this argument stipulate that criminalizing marital rape is intruding on the privacy of the sacrament of
marriage.
A few facets emerge from the cultural relativism argument. First off, the cultural value placed on the sanctity of marriage advances the argument that criminalizing
marital rape would destroy the institution of marriage. IT HAS already been struck down by the Supreme Court in Independent Thought, where the Court
specifically explained that marriage is personal and nothing short of the Indian State (“the State”) criminalizing marriage itself can destroy the institution of marriage.
The Court further elaborated that if divorce and judicial separation are not seen as destroying the institution of marriage, the concept of marital rape certainly does
not have the potential of destroying the institution of marriage.
Nimeshbhai Bharatbhai Desai v. State of Gujarat, (2017) High Court of Gujarat, India has recently argued that the non-consensual act of marital rape violates the
trust and confidence within a marriage and the prevalence of marital rape in India is what has damaged the institution of marriage.
3. Implied Consent A common argument used against the criminalization of marital rape is the idea of implied consent within a marriage.
In 1736, Sir Matthew Hale of England had declared that “the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual
matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract.”
William Blackstone in 1753 when he defended the common law doctrine of coverture. [B]y marriage, the husband and wife are one person in law: that is, the very
being or legal existence of the woman is suspended during the marriage, or at least incorporated and consolidated into that of the husband: under whose wing,
protection, and cover, she performs every thing [sic] . . . and her condition during her marriage is called her coverture.
This immunity was revoked in England and Wales in 1991, when Lord Keith communicated on behalf of the Court that modern marriage is a partnership of equals
and the wife is no longer considered the subservient chattel of the husband.
Nonetheless, the argument that marriage implies consent is still used today in India to justify the marital rape exemption in the penal code as seen by the Law
Commission of India’s 172nd Report on Review of Rape Laws of 2000.
4. Marital Rape is Uncommon -Another argument put forth by advocates for maintaining the marital rape exception is that cases of rape within the marital context are
few.
5. Repealing the Marital Rape Exception Will Lead to Misuse by Wives- Lastly, defenders of the marital rape exception purport that repealing the exception will
allow wives to misuse the law and bring rape charges against their husbands to settle scores in unrelated quarrels. For example, in Arnesh Kumar v. State of Bihar,
2014, the Supreme Court stipulated that Section 498A is being used as a weapon by disgruntled wives rather than a shield.
Arguments for Criminalization of Marital Rape
The marital rape exception can be seen as being contrary to many of India’s national laws. The exception is also argued to be a violation of various constitutional
guarantees. Furthermore, the marital rape exception violates a number of India’s international law obligations. Aside from legal arguments under national laws, the
Constitution, and international law, arguments are also made about the repercussions of marital rape on a woman physically and psychologically. Lastly, the underlying
justifications offered for the exception to marital rape reflect old and outdated notions that have been rejected by various courts around the globe
1. In Contravention of Other National Laws Allowing an exception to marital rape to persist is irrational when looking at the bigger picture of national laws in India.
Husbands can be held accountable for other, lesser crimes against their wives with the exception of rape. Under the national laws of India, a husband can be held
accountable for voluntarily causing hurt, s 323 ipc voluntarily causing hurt by dangerous weapons or means,324 ipc voluntarily causing grievous hurt, s 325 assault
with the intention of outraging her modesty,354 ipc sexual harassment,354 a ipc, assault with the intent to disrobe, s 354 b ipc, voyeurism, s 354 c ipc, and stalking s
354 d ipc.
2. Violation of Constitutional Guarantees: Preserving Exception 2 to Section 375 of the Indian Penal Code violates rights and protections guaranteed by the Indian
Constitution, specifically Article 14, 15(3), and 21. Article 14 of the Constitution of India is an equal protection clause that guarantees equality before the law and
prohibits discrimination on the grounds of religion, race, caste, sex or place of birth. Article 15(3) allows the State to make special provisions for women and children.
Article 21 of the Constitution establishes protection of life and personal liberty. The marital rape exception, which is now applicable to married women eighteen
years of age and older can be seen as arbitrary and discriminatory as it provides for an unsupported distinction between married and unmarried women even though
both may be subject to the exact same maltreatment.
The Court has acknowledged that sexual violence is an intrusion into the right to privacy of a female. Under State of Maharashtra v. Madhkar Narayan, 1991, the
Supreme Court held that every woman is entitled to sexual privacy. hence, legalizing rape in the context of marriage violates a woman’s right to privacy guaranteed
under Article 21 of the Constitution.
Additionally, the Supreme Court of India has interpreted Article 21 to encompass the right to good health under the right to life, CESC Ltd. v. Subhash Chandra,
(1992). Rape, in any context, is known to cause a plethora of physical and psychological damage. Sexual violence is known to cause depression, anxiety, pregnancy
complications, sexual transmitted diseases as well.
3. In Contravention of International Law Obligations India has ratified the Convention on the Elimination of All Forms of Discrimination Against Women, the
International Covenant on Civil and Political Rights (“ICCPR”), and the International Covenant on Economic, Social and Cultural Rights (“ICESCR”).India is also
a signatory of the Universal Declaration of Human Rights (“UDHR”). The CEDAW Committee has identified that gender-based violence nullifies various other
rights guaranteed under international treaties, including the right to be free from discrimination, the right to life, right to liberty and security, right to equality in the
family, and right to health and well-being.
4. Marital rape is an infringement on the right to life. The right to life is an essential right guaranteed by all human rights treaties and customary international law.
Specific guarantees to the right to life can be found in the ICCPT and the UDHR. Violence against women in the context of intimate partner violence has been
recognized as a leading cause of death around the globe. Marital rape also equates to other consequences that infringe on the right to life including increases in
miscarriages, complications during pregnancies, unsafe abortion practices, and the higher likelihood of contracting sexual transmitted diseases, all of which can lead
to fatal results. As a result, criminalization of marital rape is a fundamental obligation states must undertake in order to meet their international law obligations.
Marital rape also violates the right to liberty and security of person. The right to liberty is again guaranteed by the ICCPR and UDHR. Article 9 of the ICCPR requires
State parties to respond appropriately to patterns of violence against women.