Violence against women


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Violence against women

  1. 1. Violence against women in India“In childhood a female must be subject to her father, inyouth to her husband, when her lord is dead to her sons. Awoman must never be independent” (Manu V. 145)Violence against women in India isn’t just a current issue,but rather has deep seated traditional roots in the culture. Inorder to combat the problem, we must understand itscauses.In India, the problem of violence against women is a resultof a long standing power imbalance between men andwomen. Men have control over access to property andresources. There is also a sexual division of labor in Indiathat results in female exploitation–physically, mentally, andcommercially.Oppression in IndiaWomen in India are subject to all forms of violence. Femaleinfanticide is quite common in Haryana and Punjab becausethere is a preference for sons because male children carryon the family lineage. The education of sons is alsoconsidered much more important. In these two states, thesex ratio is lower than the national average.Discrimination within the householdWithin the household, there exists gender discriminationwhich determines intra-household distribution of food.Because women and girls are given less food than men,malnutrition among adolescent girls and women is quiteprevalent in India.Lack of opportunity to work
  2. 2. Due to lower educational levels, a woman has a much lowercapacity to earn. Women from upper castes are seldomallowed to work outside the home. However, workparticipation rate among low caste women is bettercompared to that of upper caste women.Honor killingsHonor killings are quite common in Haryana and Tamil Naduwhen young girls marry somebody outside their caste andclan against her family’s wishes.Women as propertyDowry is demanded from the husband’s side (in-laws) whenyounger women get married. Newly married women becomesubject to verbal and physical abuse. In many cases, youngbrides are burnt to death by her in-laws if the parents fail tomeet the requisite dowry demanded. Women are alsoviewed in terms of their virginity, as chastity is consideredas a great virtue.In terms of family planning, women have been used as thesubjects of experiments. Governments promotecontraceptives to lower fertility among women, at the behestof multinational corporations and the corporate sector,without thinking about their consequences. Populationcontrol and family planning is considered a way to controlwomen’s sexuality.Data on violence against womenIn a country like India the data may show that such crimesbeing committed may be going up or down. But in reality,women are afraid of even lodging FIRs (First InformationReport) in police stations despite being raped or sexuallyharassed. The judiciary and the legal system are biased infavor of men. Cases of violence against women are under-reported.
  3. 3. According to the latest National Crime Records Bureau 2007,a total of 1,85,312 incidents of crime against women (bothunder Indian Penal Code-IPC and Special and Local Laws-SLL) were reported in the country during 2007.The total numbers of sexual harassment cases were 10,950in 2007. The total number of cases pertaining to cruelty byhusband and relatives was 75,930. There were 61 cases ofimportation of girls. Altogether there were 38,734 cases ofmolestation in 2007.The number of rape cases has increased by nearly ten foldfrom 2487 in 1953 to 20737 in 2007.What can be doneWhen women protest against their exploitation, many try tosilence them. The experience of Bhanwari Devi, the ‘sathin’from Rajasthan, is a case in point. She was gang-raped forworking against child marriage practiced by the upper castesin her village.According to the NCRB (National Crime Records Bureau)2008, respect for women seem to be the worst in AndhraPradesh, which accounted for 83.5 per cent of cases underIndecent Representation of Women (Prohibition) Act of totalcases across the country. Out of a total 1,200 such cases,Andhra had registered 1,005 incidents in this regard. TheNCRB data clearly points to the profile of the average rapist– over 75% were known to the victims. In fact, nearly 10%were relatives. Another disturbing aspect was that about aquarter of the rape victims were minors.During the Fourth World Conference on Women held inBeijing in September 1995, the United Nations Secretary-General, Boutros Boutros-Ghali, said that violence againstwomen is a universal problem that must be universally
  4. 4. condemned. The United Nations has termed violence againstwomen as a gross violation of human rights.The theme of violence against women surroundingmarriages or relationships (even outside any relationships)has become a serious issue in post modern India. Crimesagainst females start when the child is born and if she is notmurdered then continue all through her adolescent age andmarital life. The most common forms of violence againstwomen and girls are Female infanticide, Child beating, Brideburning, Dowry deaths, Honour killings Domestic violence,Sexual harassment or Sati. The State has tried to tacklethese crimes by legislative action since the beginning of the20th century. But the violence against women has notshown any signs of abatement. Our Constitutionunequivocally grants to the woman a place in the societyequal to that of men by giving them equal rights of work,wages and vote. But man, his mind attuned to the notion ofwoman as chattel, is hitting hard at woman’s assertion ofequality and dignity.The main reasons attributed to the rising violence againstwomen are the failure of the existing law and that of the lawenforcement agencies to effectively deal with it. Though thestatus of the women has risen in the society, the rate of thecrimes has risen and has taken hybrid forms. Among manyreasons attributed to the failure, we are most concernedwith the approach of the legal machinery towards crimesagainst women. Over the years the Indian State has enactedgeneral as well as specific provisions to deal with thismenace. But a patriarchal umbrella covers these lawsmaking them female insensitive. An ideal law should notonly have substantive but procedural fairness as well. Acritical evaluation of the different legislations to curb themenace have gaping holes in the approach of the legislatureas well as the judiciary.
  5. 5. Rape. Rape in ordinary jargon means intercourse with a womanwithout her consent, under fear or fraud(Legally defined Sec375 of IPC).Feminist organizations have defined rape as anact of hate and contempt and the assertion of male power ina patriarchal society. rape law miserably falls short oftaking into account various situations which may deprive thewoman of her power to consent to an act of sexualintercourse. Thus rape laws in India are archaic in natureand fall short of protecting the women. The two most glaringexamples of lacunae in the law are Marital Rape and Rape bywomen.Marital RapeIn common law the institution of marriage is greatlyinfluenced by the Roman Law. Marriage in Roman Law was aprivilege of the Roman citizens for it was closely connectedwith the concept of property. This being the reason, theslaves or Junian Latins (slaves freed after manumission)were prevented from being married to the Roman women.[4] However it must be noted that in Roman Law a womanhad no legal rights and to prevent any diversion of propertyvested in her by virtue of being in her father’s manus , thehusband had the absolute right to conjugal relations with hiswife. The notion of consent was absent. She was totallysubjected to the whims and fancies of her husband as heheld the position of her tutela (similar to the modern dayconcept of guardian).[5] This gave foundation to the conceptof woman, as a property or chattel, with no will of her own.[6] Therefore a married woman was really a part of herhusband’s property, so that forced sexual intercourse wasmerely a way by which the husband was making use of hisproperty. Blackstone puts it neatly by saying that the verybeing of the woman is suspended during the marriage, or atleast is incorporated and consolidated into that of herhusband, under whose wing, protection and cover sheperforms everything.[7]
  6. 6. The Common Law PositionUntil 1991, in England, non-consensual intercourse betweenman and wife was not “unlawful” (being understood in thiscontext to mean “outside of marriage”) sexual intercoursewhich fell within the definition of that act contained insection 1(1) of the Sexual Offences (Amendment) Act 1976(now itself amended). The Law Commission in England, in1991, made its case on the basis that modern marriage is apartnership of equals and rape is no-consensual intercourse,and women are entitled to refuse to have sexual intercourseon any particular occasion. The Law Commission consideredand rejected all the objections normally raised to thecriminalization of rape in marriage as irrelevant to the factthat rape is a crime.[8] The House of Lords in R v. R [9] heldthat there is no ‘marital exemption’ to the law of rape andaccordingly the husband may be convicted of the rape of hiswife, if she does not consent to intercourse regardless ofwhether he is living with or apart from his wife. This viewnow has been consistently followed in a number of Englishdecisions.[10] In Australia also marital rape is no exceptionto the offence of rape.[11]American PositionAmerican Criminal Law has also adopted the Common Law,so far as the husband’s immunity from the offence of rape isconcerned. Different jurisdictions have different degree ofpunishments but the position is common that marital rapeexemption is unconstitutional in law.[12]Indian PositionRape is defined under Section 375 of IPC. [13] The sectionitself provides an express exception by virtue of whichsexual intercourse with the wife does not qualify as rape.Marital rape is punishable only when the wife is between12-15 years of age or if the rape is committed on the wifewho is judicially separated. Indian Law prima facie does notrecognize marital rape to be an offence if the wife is over 15
  7. 7. years of age. On analysis of Sections 375 and 376 of the IPCone finds that in India, law is still possessed by the phantomof patriarchy. The legal system still seems to beretrogressive. Rape is only a ground for divorce. Under theHindu Marriage Act, 1955,[14] the Special Marriage Act,1954[15] and Indian Divorce Act, 1869[16] rape is a wife’sspecial ground for divorce. Under the Parsi Marriage andDivorce Act, 1936 fornication and rape are special groundsfor divorce for wife.[17] Courts in India and abroad havebeen expanding the traditional legal definition of rape toinclude both custodial and marital rape. In Bodhisattawav.Gautam[18], the Supreme Court said that rape is a crimeagainst basic human rights and is also violative of thevictim’s fundamental rights, but refused to recognize maritalrape. The case of marital rape suffered a serious setbackwhen a two judge bench of Supreme Court in discussingmarital rape held that foreign precedents need not to berelied upon to change the law which has been followedconsistently for the last 50 years.[19]It is to be understood that Rape per se means ‘sexualintercourse without consent”. It is an extremely dangerouscrime which threatens to not only physically hurt a womanbut mentally traumatize her. Thus Rape should not beisolated in law but should also be contextualized in thedomain of sexuality.[20] There is a need for the law toaccept that all rape is rape –even if it is not by a stranger.[21] If husband insists on having sexual intercourse with hiswife and causes grave injury or danger to life, limb or healthof the wife such a conduct amounts to cruelty to her. It mustnow be recognized that if the husband during sexualintercourse with his wife treats her with cruelty as definedunder the IPC, the conduct shall be punished as amountingto rape as protection of life and limb is the principal functionof the criminal law. A husband does not have an absoluteright to enjoy the person of his wife without regard to thequestion of safety to her, and if he does so, the conductshould be punishable. If one adopts the liberal interpretation
  8. 8. of 498A it can be reasonably be said that the rape amountsto cruelty as defined in that section. It easily conforms tothe definition of mental and physical torture.Rape By WomanIt is of utmost disappointment that the laws in Indiaregarding women have not progressed with time. They areextremely pedantic and narrow in their approach and theattitude of the judiciary also has not helped the cause. Theinjustice to the woman cause is observed in the rape clausewhich exempts a woman committing rape on other woman.A bare reading of Section 375 makes it clear that rape canbe committed by a man only. The Supreme Court in PriyaPatel v. State of M.P.[22] held that it is conceptuallyimpossible for a woman to rape another woman. JusticePasayat stated that when one or more persons act infurtherance of their common intention to rape a woman,each person of the group shall be deemed to havecommitted gang rape. The sine quo non for bringing inapplication of S. 34, I.P.C. is that the act must be done infurtherance of the common intention to do a criminal act.The expression ‘in furtherance of their common intention’ asappearing in the Explanation to S. 376(2) relates tointention to commit rape. A woman cannot be said to havean intention to commit rape and thusa woman cannot beheld guilty of committing rape.This judgment no doubt shows the lack of conceptual clarityin the judicial mind when it comes to the offence of rape. Ifin a case a woman had held woman and facilitated thecommission of rape then it would have clearly fitted the billof gang rape. But by holding that it is conceptuallyimpossible for a woman to commit rape or help the otherscommitting rape, the Supreme Court have closed doors onliberal and just approach to rape laws.
  9. 9. Honour KillingsHonour, a wide ranging masculine concept underpinningpatriarchal practices in India across all castes, is the one ofthe most valued ideals in the sub continental patriarchies,whether Hindu, Sikh or Muslim – with most communitiesseeking to gain and maintain ‘honour’. Quite ironically in thepatriarchal societies women are the repositories of this‘honour’.[23] Violation of the marriage codes is regarded asan attack upon the ‘honour’ or ‘prestige’ and the action touphold this honour is obviously a male prerogative. Thisaction translates itself either into either physical or mentaltrespass.[24]Run Away MarriagesIn the extremely gender biased caste and religiouslypolarized society of the country, “eloping” has become quitea norm. It is observed that immediately after a young couple‘elopes’, the criminalization of their action and thecontestation of the validity of the marriages begins. First,the father of the woman alleges that she is a minor, andfiles charges against her husband of kidnapping/abduction,wrongful confinement and often rape. Subsequently thepolice vigorously searches for the ‘kidnapped girl’ leading toarrest of the boy’s family members. The social pressureexerted on the couple forces them to come out of hiding andthe criminal justice system brings the ‘errant’ children totask. In the case of Ravi Kumar,[25] 16 year old girl fell inlove wth a vegetable vendor and got married to him. Theelder sister of the girl, who was the only earning member ofthe family, filed a complaint in the police station. The policefound the couple and on the girl’s refusal to leave herhusband, the police put her in Nariniketan because thepolice believed that she might be manipulated by her in lawswith whom she was residing The court in this case wassympathetic to the cause of the girl and quashed thecharges of kidnapping and abduction against the boy.
  10. 10. At the heart of this dispute of elope marriages lies the claimof two men for the custody of the women. Thus the judgesfirst settle the question of custody and the authority of‘natural’ guardians.[26] Thus at this stage we see theextereme marginalization of women who are treated asnothing but mere property of either father or husband. Theparty seeking the custodyof the women moves a habeascorpus petition. In Mohd. Ikram Hussain v. State of Up[27]the Supreme Court highlighted an important dimensionto this contest over custody, namely that a habeas corpuspetition for such a purpose in not available for a mancharged with kidnapping. Rather, the only remedy availableto such a person is to establish the ‘factum’ marriage andthen seek retrieval through restitution of conjugal rights.Another line of reasoning naturalized in judicial discourse isthe idea that a woman who has been in the custody of herchosen partner is under coercion and not in a position tomake an independent decision; therefore before determiningthe case she must first be put into the supposedly protectivecustody of the state. Conversely, a woman in the custody ofher parents is not recognized as subject to any form ofcoercion or pressure: there is a natural bias in favour of theparents, who, as far as the judicial system is concerned,could never be acting against her interest. At the same therehave been instances where the Courts have worked toestablish the autonomy of the woman. In Jyoti alias Janatand Another v. State of UP [28], the court held once aperson becomes a major he or she cannot be restrainedfrom going anywhere or living with anybody and any actrestraining them will be violative of Article 19 of the IndianConstitution.Dowry And Dowry Related OffencesOne of the crudest and cruelest form of domestic violencestems from “dowry” – a dreadful evil which has become apart of Hindu social life. Today Dowry has pervaded all thecommunities and threatens to destroy the social fabric withwhich the Indian family is woven. The tradition of dowry
  11. 11. started in the form of “Vardakshina” which used to be givenby the parents of the bride to the bridegroom out of loveand affection and to honour the groom rather than to inducehim to take the bride[29]. Later on in the hands of lords andkings[30] it became the symbol of status and prestige toassert one’s superiority over others and dowry emerged asan unintended consequence of the above social practice.[31]Before independence, the effort to control the dowry evilwas made in the then province of Sindh by enacting theSindh Deli Leti Act, 1935. Free India enacted its first statutein 1961, the Dowry Prohibition Act, 1961. This statuteproved inefficient and a Joint Parliamentary Committee wasconstituted, on whose recommendation the Act wasamended twice in 1984 and 1986.[32] The committeehighlighted the inefficiency of the act and recommended IPCprovisions to deal with the situation. Section 498A andSection 304B which came as a result of the recommendationhave been discussed in the subsequent sections.Dowry Prohibition Act, 1961The Dowry Prohibition Act, 1961 is a short act with only 10sections with the express objective to prohibit giving ortaking of Dowry. Under the Dowry Prohibition Act thedefinition of dowry is extremely wide covering situationbefore, at the time and after the marriage. [33] However,one observes that it has been the utmost failure of both thejudiciary and the legislature in not giving an exact definitionof Dowry. But this problem is not one of competence but ofcomplexity of the issue.[34] Moreover, the courts havemade the words “to be agreed redundant” in L. V. Jhadav v.Shankarrao Abasaheb pawar and others.[35] Another majorproblem faced by the courts is distinction between stridhanand dowry.[36] Stridhan is a type of property over which thewoman generally has full rights of ownership. It mostlyconsists of items which are given to her during the time ofher maidenhood, presented at the time of her marriage orafter the marriage.[37]But in the case of Prathiba Rani v.Suraj Kumar[38] the SC held that whatever is given to the
  12. 12. bride at the time of the time of marriage constitutes dowry.Though this destroys the distinction between stridhan anddowry but in the opinion of the researcher since the linebetween the two is extremely thin, there is no otherrecourse available to the courts.Section 304B[39]Dowry Prohibition Act, 1961 is only an act to prevent thetaking or giving of dowry. The penal sanction for giving ortaking of dowry is only five years and it prescribes nopunishment for dowry deaths. More so dowry deaths weremore or less characterized as suicide.[40] Section 304B,which falls under the heading “Offences affecting a humanbody”, devises a mechanism for punishing dowry death.Under this section minimum sentence is seven yearspunishment which may extend to punishment for life. Dowryrelated deaths are also concerned with Sections 299, 300,302, 304, 306, 307 of the Indian Penal Code. Section 304Bapplies not only when death is caused but also when deathoccurs naturally whoever might have caused it. Thoughthere is no definition of cruelty in 304B, but it is borrowedfrom 498A since they have a common background.A careful reading of the S.304B leads us to conclusion thatwords “… is shown that soon before her death she wassubjected to cruelty or harassment….” are of significancebecause the initial burden of proving that circumstanceswhich are essential for proving an offence under S.304B didexist is on the prosecution. If this is shown or established,the question of presumption u/S. 113B of the Evidence Actwould arise. Going by the conventional standard it may beharsh but looking at the problem at hand it seems anappropriate measure. Generally dowry death is committedwithin four walls of house where bride is in helpless situationthus the Indian Parliament was left with no alternative but inorder to save hundreds of innocent girls from death and of
  13. 13. course to punish such criminals it had to enact the provisionfor such presumption.[41]Limited Application of 304BIt is to be noted that Section 304B is used only in the caseswhen there is a death within seven years of marriage.Section 304B loses its applicability after that. In State ofPunjab v. Iqbal Singh and others[42]it was observed thatperiod of seven years is considered to be the turbulent oneafter which the legislature assumes that the couple wouldhave settled down in life. The section only deals with thesituation that the where there is a death. If it does not resultin death but then Section 498A applies which is discussed inthe next section.Section 498A[43]Section 498A of the IPC was introduced in the Indian PenalCode by Criminal Law (Second Amendment) Act, 1983 forprotection of the women inside the matrimonial home. Thissection was enacted to comprehensively cover instances ofwife beating, bride burning and cruelty of different degreesand variations directed against women. The statement ofobjects and reasons of the said amending act referred to theincreasing number of dowry deaths which was a matter ofserious concern. The extent of the evil was commented bythe joint committees of both the houses to examine theworking of the Dowry Prohibition Act 1961. It was found thatcases of cruelty by husband and relatives of the husbandwhich culminate in suicide by, or murder of, the haplesswomen concerned, constitute only a small fraction of thecases involving such cruelty. An offence in the nature ofabetment to suicide may also attract the provisions ofSection 306, IPC, which was already in the statute book. Itwas therefore proposed to amend the Indian Penal code,1860, Code of Criminal Procedure 1973 and Indian EvidenceAct 1872 to effectively deal with not only the cases of dowry
  14. 14. deaths, but also the cases of cruelty to married woman bytheir in laws. This resulted in the introduction of 304B todeal with dowry death and 498A to deal with cruelty towomen. Section 113A introduced in the Indian Evidence Actby this amendment raises a presumption against thehusband or the relatives of the husband for the abetment ofsuicide by a married woman within a period of seven yearsof her marriage if she has been treated with cruelty by herhusband or such a relation to coerce how to fetch moredowry or on her refusal to do so.[44]Cruelty: MeaningIt is observed thorough judicial decisions that the definitionof cruelty is constantly in flux. The concept of cruelty variesfrom place to place and individual to individual andaccording to the social and economic status of the personconcerned. Therefore, to decide the question of cruelty therelevant factors are the matrimonial relationships betweenthe husband and the wife, their cultural and temperamentalstatus in life, state of health, their interactions in their dailylife which dominate the aspect of cruelty.[45] Theexpression ‘cruelty’ postulates such treatment as to cause areasonable apprehension in the mind of the wife that herliving with the husband will be harmful and injurious to herlife.[46] Cruelty covers both mental and physical crueltyagainst the wife.[47] The Supreme Court in Pawan Kumar v.State of Haryana[48] has held that cruelty and harassmentneed not be physical. Mental cruelty can be broadly definedas that conduct which inflicts upon the party such mentalpain and suffering as would make it not possible for theparty to live with each other.[49]Mental cruelty means,when other party causes mental pain, agony or suffering ofsuch a magnitude that it severs the bond between thehusband and wife.[50] It is observed that the definition ofcruelty has constantly been expanding. This trend has itspros and cons.
  15. 15. It is submitted that while the expanding definition has givenincreased protection to women in matrimonial homes, it hasalso been misused by victim wife to unnecessarily implicatethe relatives of the husband. Inflated and exaggeratedcomplaints are filed against each and every relation and ifany one of them happens to be of higher social standing, heor she becomes an easy prey for bargaining andblackmailing. The threat grains credibility because of thecognizable, non-compoundable and non-bailable character ofthe section. The courts have exhorted the law enforcementagencies to guard against such covert misuse andinvestigate the matter sensitively.[51]SentencingThere is no compulsion that a jail sentence must be awardedand it is for this reason that the option of awarding either ajail sentence or a fine or both is left to the discretion of thecourt. If it appears to the court that on an overall view ofthe case a jail sentence would serve the ends of justice,such a punishment would be in order. The court can merelyorder the payment of fine also.[52] Moreover the fact thatthe accused is neither a habitual offender or does not haveany criminal record is no defense to lenient punishmentbecause in most cases the husband does not have a criminalrecord.[53] Keeping in mind the atrocious nature of thecrime and obvious repercussions on the woman and society,the courts have pronounced severe punishment so that itmay have deterrent effect.Limited Application of 498 ASection 498A only applies to the situation where the womanwho has been treated cruelly satisfies the criteria of wife in125 of Cr P.C. If on the date of the alleged cruelty, theinformant or the victim ceased to be the wife of the accusedthe FIR as well as the charge sheet is liable to be quashed.[54] Moreover by the usage of the words ‘marriage’ and‘husband’ in 304B and 498A, restricts the usage of thesection to only marriage which is valid in law.[55] If the
  16. 16. prosecution produces evidence indicating at the fact that thewoman was only residing with the accused but no evidenceregarding the marital status, then the criterion of Section498A are not fulfilled.Non CompoundabilityThe author submits that the purpose of the 498A is toprotect women and not destroy matrimonial homes. The noncompoundability nature of this section threatens to shakethe foundations of the marriage which is regarded assansakara since time memorial. If the parties decide tosettle their disputes amicably to salvage the marriage ordecide to put an end to the marriage by mutual divorce,they should be allowed to compound the offence so thatcriminal proceedings don’t chase them. Justice MalimathCommittee has reported that the offence being non-bailableand non-compoundable makes an innocent person undergostigmatization and hardship.[56] Thus it is suggested that ifthe woman lodging the complaint feels that reconciliationcan be reached, the Courts should oversee the matter andallow for such an amicable settlement.[57]Distinction between Section 498A and 304BThe distinction between the two sections was discussed inSmt. Shanti and Another v. State of Haryana. [58] Thecourt held that these two sections are not mutually exclusivebut they deal with two separate offences. Section 498Atosome extent overlaps with Section 304B but it cannot besaid that sufficient provision has been incorporated in thePenal Code in the shape of section 498A so as to deprive thelaw court from recording the conviction under 304B readwith 126 of IPC. The ingredients of S 304B are totallydifferent from 498A. Since 304B only applies in the case ofdeath and within a fixed period i.e. 7 years its scope is muchlesser than that of 498A.
  17. 17. ConclusionThe above discussed problems of the social legislationsdealing with the problems of women leave one in disturbedstate of mind. Undoubtedly, in a society that seems to treatissues of the welfare of women too casually, some stringentmeasures are necessary to keep in check the unscrupulous &unbridled male of the specie. Women have suffered ages ofextreme discrimination and isolation. The foregonediscussion clearly indicates the manner in which the criminallaw in India is still in the patriarchal clutches. It was seenhow rape laws meant for the protection of women are notable to remedy certain situations which have gainedprominence in recent times. The greatest danger the womenfaces with respect to violence is in her home and dowrydemand still exists in most homes in India. The currentlegislation has not been able to remedy the wrong which hasexisted in this country as a result of patriarchal hegemony.Though stricter penal laws in the IPC have helped the causebut it is a still a long way ahead to completely get rid of theevil.This acute problem that has pervaded all spheres of oursocial life requires comprehensive legislative action withfocus on women crimes. The laws are outmoded and need adefinite change if we are to achieve our twin Constitutionalobjective of justice and equality. The judiciary needs to playits part in interpreting the laws in favour of the women.Moreover, the state has every right to enter the privaterealm of home if great injustice is being done behind closeddoors of home. The legislature needs to take up relevantissues and deal with contemporary problems instead ofrelying on old legislations. The problem requires acomprehensive law covering all the aspects of the crime, likepreventive punishment, legal procedure and socialsafeguard.[1] V Suresh and D Nagasaila, PSA Pillai’s Criminal Law, 9thedition, (New Delhi: Butterworths India, 2000) at 720.
  18. 18. [2] Richard Card, Criminal Law, (London: Butterworths,1995) at 237.[3] Ratna Kapur and Brenda Cossman, Subversive Sites –Feminist Engagements with Law in India, (New Delhi: SagePublications, 1996) at 61.[4] A. M. Prichard. Leage’s Roman Private Law (London:Macmillan & Co. Ltd., 1961) at 96.[5] This can also be inferred by looking at the laws relatingto succession and the offence of adultery[6] Therefore the question of her consent didn’t arise, evenin matters relating to her.[7] Blackstone, Commentaries on English Law- Vol. I , 1844,at 442.[8] Joni Lovenduski & Vicky Randall, Contemporary FeministPolitics (Oxford: Oxford University Press, 1993) at 330.[9] [1991]1 All E.R. 747 (The brief facts of this case were asfollows: The husband and wife had been married in 1984 butson separated in October 1989 because the wife complainedthat she was being forced to have sexual intercourse. Thewife left the matrimonial home with her children and went toher parents’ house. Two days later the husband phoned thewife and told her that he was going to seek a divorce. Thefollowing month the husband broke into the parents’ homeand either forced the wife to have sexual intercourse orattempted to do so, that being an act, which formed thebasis of the charge against him).[10] R. v. C, [1991] 1 All E. R. 755 (In the course of the trialof two defendants, who included the husband of the victim,on charges of kidnapping, rape, aiding and abetting rapeand buggery committed against the wife of one of the
  19. 19. defendants, the trial judge, Simon Brown J., was asked togive a ruling on whether the defendant husband could beguilty of the offence of raping his wife. The husband wasliving apart from his wife at the time of the alleged offencebut there was no formal separation agreement. Thedefendants were alleged to have abducted the wife and tohave them committed the sexual assaults, which were thebasis of the charges brought against them. Although thedefendants were acquitted on the charge of rape, the rulingon Marital Exemption in this case is a landmark in the law ofrape). Also see S. v. H.M. Advocate, 1989 S.L.T. 469.[11] R. v. L, (1991) 174 CLR 379.[12] Delaware classifies rape into two categories. Rape inthe first category is in the first degree if the victim is not thedefendant’s voluntary social companion on the occasion ofthe offence and has not previously permitted him to sexualcontact. Marriage or previous sexual contact, however,reduces the offence to second degree. In 1977, Oregon’s lawwas changed to create a new offence called, ‘Sponsol Rape’,one that could be committed only by a husband against hiswife. Nebraska has also adopted a law allowing a wife tocharge her live-in husband with rape[13] Section 375 of the Indian Penal Code as “ a man is saidto commit rape who, except in the cases hereinafteraccepted, has sexual intercourse with a woman undercircumstances falling under any of the six followingdescriptions”:Firstly, against her will.Secondly, without her consent.Thirdly, with her consent, when her consent has beenobtained by putting her or any person in whom she isinterested in fear of death or of hurt.
  20. 20. Fourthly, with her consent, when the man knows that he isnot her husband, that her consent is given because shebelieved that he is another man who she is or believesherself to be lawfully married.Fifthly, with her consent, when, at the time of giving suchconsent, when, at the time of giving such consent, by reasonof unsoundness of mind or intoxication or the administrationby him personally or through another of any stupefying orunwholesome substance she is unable to understand thenature and consequence of that to which she gives consent.Sixthly, with or without her consent when she is less than 16years of age.Explanation.—Penetration is sufficient to constitute thesexual intercourse necessary to the offence of rape.Exception.—Sexual intercourse by a man with his own wife,the wife not being under[14] Section 13 (2) (ii).[15] Section 27 (1A)(1).[16] Section 10[17] Section 32(d).[18] AIR 1996 SC 922. Kapur, Ratna, & Khanna, Shomona,Memorandum on Rape Laws relating to Sexual Offences(Delhi: Centre for Feminist Legal Research,1996) at 39.[19] Sakshi v. Union of India, 2004 5 SCC 518.[20] Naina Kapur, & Kirti Singh, “Practising Feminist Law”,6-8 Stud. Ad. 32 (1994-1996).
  21. 21. [21] Collen Ward, Attitudes towards Rape (London: SagePublications, 1995) at 42.[22] (2006) 6 SCC 263(Prosecutrix was returning by UtkalExpress after attending a sports meet. When she reachedher destination at Sagar, accused-husband of appellant-accused met her at the railway station and told her that herfather has asked him to pick her up from the railway station.Since the prosecutrix was suffering from fever, sheaccompanied accused to his house. He committed rape onher. When commission of rape was going on, appellant-accused his wife, reached there. The prosecutrix requestedthe appellant to save her. Instead of saving her, theappellant slapped her, closed the door of the house and leftplace of incident.)[23] Uma Chakravarti,” From father to husbands: of love,death and marriage in North India”, Honour : Crimes,Paradigms, And Violence Against Women at 314.[24] Hindu woman who had a relationship with a Muslimman, was dragged out of her house, stripped and killed andthen let on the street as an example to all other women ofthe punishment to be inflicted on the women whotransgressed the boundaries of community( Times of India,19 April 2002). A Hindu girl married to a Christian boy wasforcibly separated from and forced to abort the four monthpregnancy( Indian Express , 8 June 2003).[25] Unreported.[26] Kiran Singh v. Anand Pratap Singh, AIR 1980 SC 1749.[27] AIR 1964 SC 1625.[28] 2003[2] JIC 468(All).
  22. 22. [29] N.R.Madhav Menon, “The Dowry Prohibition Act: Doesthe law provide the solution or itself constitutes theproblem?” Indian Bar Review Vol.14, 1987, p.631.[30] For example the Island of Bombay once formed part ofthe Portuguese Dominions in India. In 1661 when PrincessInfante Catherine was married to King Charles II of England,it was ceded by the King of Portugal to the British Crown asdowry, cited from, The Collector of Bombay v. NusserwanjiRattanji Mistri and others,1955 SCJ 339.[31] Supra note 29.[32] The act was also as a result of the strong women’smovement in late 70’s and early eighties. With the campaignagainst dowry, the family as a private domain lost itssignificance and was brought into public sphere as a site ofinequality and oppression. The dowry deaths called suicidescame to be redefined as murders.[33] It is defined as – any property or valuable securitygiven or agreed to be given either or directly or indirectly –(a) by one party to a marriage to the other party to themarriage (b) by the parents of either party to a marriage orby any other person, to either party to the marriage or toany other person , at or before or after the marriage inconnection with the marriage of the said party but does notinclude dower or mahr in the case of the persons to whomthe Muslim Personal law(Shariat) applies.[34] See Kunju Moideen v. Sayed mohd, AIR 1986 Ker.48( Question arose whether money advanced by a person to aprospective son-in-law for purchasing land in the joint nameof himself and daughter amounts to dowry or not. The courtheld that it was not dowry).[35] AIR 1983 SC 1219 (A dowry demand was made in thename of expense of sending the bride to her husband to USA
  23. 23. where he was working. It was threatened that the marriageswill be discontinued if the money is not paid but nonethelesscertain ceremonies were completed. On the breakdown ofthe marriage the bridegroom contended that there wasnever any agreement. The court however rejected thisnarrow interpretation).[36] The Act as it may be noted uses the word dowry not inthe sense only what the bride’s parents give to bridegroomor their daughter’s in laws but also other way round.Moreover the Act not only applies to Hindu communities butto all kinds of religious marriages.[37]Paras Diwan, Law relating to Dowry, Dowry Deaths,Bride Burning, rape and Related Offences(Universal:1997,NewDelhi) at16.[38] AIR 1985 SC 628.[39] Section 304 B, IPC: Dowry Death – (1) Where thedeath of a woman is caused by any burns or bodily injury oroccurs otherwise than under normal circumstances withinseven years of her marriage and it is shown that soon beforeher death she was subjected to cruelty or harassment by herhusband or any relative of her husband for, or in connectionwith, any demand for dowry, such death shall be called“dowry death”, and such husband or relative shall bedeemed to have caused her death.Explanation – For the purpose of this sub-section, “dowry”shall have the same meaning as in section 2 of the DowryProhibition Act, 1961.(2) Whoever commits dowry death shall be punished withimprisonment for a term which shall not be less than sevenyears but which may extend to imprisonment for life.[40] See FN 32.
  24. 24. [41] See Gurditta Singh v. The State of Rajasthan, 1992CRLJ 309 (RAJ).[42] 1991 CRLJ 1897 (SC).[43] S. 498A, IPC: A. Husband or relative of husband of awoman subjecting her to cruelty. – Whoever being thehusband or the relative of the husband of a woman, subjectssuch woman to cruelty shall be punished with imprisonmentfor a term, which may extend to three years and shall alsobe liable to fine.Explanation. – For the purposes of this section, “cruelty”means -(a) Any willful conduct which is of such a nature as is likelyto drive the woman to commit suicide or to cause graveinjury or danger to life, limb or health (whether mental orphysical) of the woman; or(b) Harassment of the woman where such harassment iswith a view to coercing her or any person related to her tomeet any unlawful demand for any property or valuablesecurity or is on account of failure by her or any personrelated to her to meet such demand.”[44] SK Sarvalya, RA Nelson’s Indian Penal Code, Volume4(Delhi:LexisNexis Butterworth, 2003) at 4621.[45] Sarojakshan Shankarah Nayar and Others v. State ofMaharashtra, 1995 Cr LJ 340(Bom).[46] Sumangala L Hegde (Smt) v. Laxminarayan AnantHegde 2003 Cr LJ 1418 (Kant).[47] Explanation (a) to Section 498A.
  25. 25. [48] AIR 1998 SC 958.[49] V Bhagat v. Mrs D Bhagat, AIR 1994 SC 710.[50] S Hanumanta Rao v. S Ramini, AIR 1999 SC 1318.[51] Kans Raj v. State of Punjab, 2000 Cr LJ 2993(SC);Savitri Devi v. Romesh Chand , 2003 Cr LJ 2759(Delhi).[52] Madhuri Mukund Chitnis(Smt) v. Mukund MatandChitnis , 192 Cr LJ 111(Bom).[53] State of Maharasthra v. Vasant Shankar Mhasane, 1993Cr LJ 1134(Bom).[54] In this case by the pronouncement of triple talaq, thecouple had ceased to be husband and wife. Azaz Hussain v.State of J&K, 2003 Cr LJ 2582 (J&K). Also see Syed HyderHussain v. State of Andhra Pradesh 2002 Cr LJ 3602(AP).[55] Ramnarayan v. State of Madhya Pradesh, (1998) 1 CCR542(Madhya Pradesh).Void marriages are defined in Section 11 of the HinduMarriage Act, 1955: Any marriage solemnized after thecommencement of this Act shall be null and void and may,on a petition presented by either party thereto, be sodeclared by a decree of nullity if it contravenes any one ofthe conditions specified in clauses (i), (iv) and (v) of section5.Section 5: Conditions of Hindu Marriage: A marriage may besolemnized between any two Hindus, if the followingconditions are fulfilled, namely:-(i) neither party has a spouse living at the time of themarriage;
  26. 26. (ii) neither party is an idiot or a lunatic at the time of themarriage;(iii) the bridegroom has completed the age of eighteen yearsand the bride the age of fifteen years at the time of themarriage;(iv) the parties are not within the degrees of prohibitedrelationship, unless the custom or usage governing each ofthem permits of a marriage between the two;(v) the parties are not sapindas of each other, unless thecustom or usage governing each of them permits of amarriage between the two;(vi) where the bride has not completed the age of eighteenyears, the consent of her guardian in marriage, if any, hasbeen obtained for the marriage.[56] Dr. Ramesh, “ Cruelty as comoundable offence: Acritique”, 2006 3(8) Criminal Law Journal 205.[57] This approach has been followed by certain High Courtswhere the order was given to quash the criminalproceedings. See Ramesh Kumar v. State 2003 IV AD377(Del).[58] AIR 1991 SC 1226 (A young woman was married withan army man. At the relevant time the husband was postedoutside the city and the woman was constantly taunted byher in laws. When her relatives tried to talk to her they wereturned out and not allowed to speak to her. Ultimately, itturned out that she was done to death and her body wascremated without telling the parents. The High Court heldthat Section 304-B and Section 498-A IPC are mutuallyexclusive and that when once the cruelty envisaged inSection 498-A IPC results in dowry death of the victim,Section 304-B alone is attracted and in that view of the
  27. 27. matter the appellants were acquitted under Section 498-AIPC. This view was not accepted by the Supreme Court).