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violence against women in india a project report submitted in university for ll.m


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violence against women in india a project report submitted in university for ll.m

  1. 1. 1 Violence Against women in India History of violence against women In Vaidik kal From Ramcharit manas Sita ji even the goddess called Luxmi avtar and the wife of Vishnu avtar Maryada puroshatam Sri Ram suffered with violence like abduction. Lankadhipati Ravan abducted Sita ji. The second example Draupadi wife of Pandavas [ Dharmaraj Yudhishthir, Great gadadhar Bheem, Great Dhanurdher Arjun, Nackul and Sehdev]. Suffered as the violence like Assault or criminal force to woman
  2. 2. 2 Duryuodhan [the eldest son of Dhritrashtra called Kaurvas] Violence is the word belongs to a savage world thatswhy we may say that violence is prevalent since the evolution of man. Violence is the source of express the superiority or express possession and Some historians believe that the history of violence against women is tied to the history of women being viewed as property and a gender role assigned to be subservient to men and also other women. The UN declaration It is not unnecessary if we defined both term of this theme Violence and Women. The term violence not defined in constitution of India. Violence has the means in itself intentional use of physical force or power, threatened or actual, against a group or community
  3. 3. 3 that either results in or has high likelihood of resulting in injury, death, psychological harm maldevelopment or deprivation. W omen - Te apex court in State of Punjab vs. major singh, while dealing with section 354 of INDIAN PENAL CODE had interpreted the term ‘women’ denoting female of any age. It further held that an offence which does not amount to rape may come under the sweep of section 354 of INDIAN PENAL CODE. Introduction- Violence against women is not only the problem of modern time but retained since middle age which is called ‘Dark age’. The sole property of her father, brother or husband and she does not have any will of her own. This type of thinking also crept into the minds of Indian people and they also began to treat their own women like this. One more reason for the decline in women's status and freedom was that original Indians wanted to shield their
  4. 4. 4 women folk from the barbarous Muslim invaders. As polygamy was a norm for these invaders they picked up any women they wanted and kept her in their "harems". In order to protect them Indian women started using 'Purdah', (a veil), which covers body. Due to this reason their freedom also became affected. They were not allowed to move freely and this lead to the further deterioration of their status. These problems related with women resulted in changed mindset of people. Now they began to consider a girl as misery and a burden, which has to be shielded from the eyes of intruders and needs extra care. Whereas a boy child will not need such extra care and instead will be helpful as an earning hand. Thus a vicious circle started in which women was at the receiving end. All this gave rise to some new evils such as Child Marriage, Sati, Jauhar and restriction on girl education • Sati : The ritual of dying at the funeral pyre of the husband is known as "Sati" or "Sahagaman". According to some of the Hindu scriptures women dying at the
  5. 5. 5 funeral pyre of her husband go straight to heaven so it’s good to practice this ritual. Initially it was not obligatory for the women but if she practiced such a custom she was highly respected by the society. Sati was considered to be the better option then living as a widow as the plight of widows in Hindu society was even worse. Some of the scriptures like 'Medhatiti' had different views it say that Sati is like committing suicide so one should avoid this. • Jauhar : It is also more or less similar to Sati but it is a mass suicide. Jauhar was prevalent in the Rajput societies. In this custom wives immolated themselves while their husbands were still alive. When people of Rajput clan became sure that they were going to die at the hands of their enemy then all the women arrange a large pyre and set themselves afire, while their husband used to fight the last decisive battle known as "Shaka", with the enemy. Thus protecting the sanctity of the women and the whole clan.
  6. 6. 6 • Child Marriage : It was a norm in medieval India. Girls were married off at the age of 8-10. They were not allowed access to education and were treated as the material being. The plight of women can be imagined by one of the shloka of Tulsidas where he writes "Dhol, gawar, shudra, pashu, nari, ye sab tadan ke adhikari". Meaning that animals, illiterates, lower castes and women should be subjected to beating. Thus women were compared with animals and were married off at an early age. The child marriage along with it brought some more problems such as increased birth rate, poor health of women due to repeated child bearing and high mortality rate of women and children. • Restriction on Widow Remarriage : The condition of widows in medieval India was very bad. They were not treated as human beings and were subjected to a lot of restrictions. They were supposed to live pious life after their husband died and were not allowed entry in any celebration. Their presence in any good
  7. 7. 7 • • work was considered to be a bad omen. Sometimes heads of widows were also shaved down. They were not allowed to remarry. Any woman remarrying was looked down by the society. This cruelty on widows was one of the main reasons for the large number of women committing Sati. In medieval India living as a Hindu widow was a sort of a curse. Purdah System : The veil or the 'Purdah' system was widely prevalent in medieval Indian society. It was used to protect the women folk from the eyes of foreign rulers who invaded India in medieval period. But this system curtailed the freedom of women. Girl Education : The girls of medieval India and especially Hindu society were not given formal education. They were given education related to household chores. But a famous Indian philosopher 'Vatsyayana' wrote that women were supposed to be perfect in sixty four arts which included cooking, spinning, grinding, knowledge of medicine, recitation and many more.
  8. 8. 8 Though these evils were present in medieval Indian society but they were mainly confined to Hindu society. As compared to Hindu society other societies such as Buddhism, Jainism and Christians were a bit lenient. Women in those societies enjoyed far more freedom. They had easy access to education and were more liberal in their approach. According to these religions gender was not the issue in attaining salvation. Any person whether a man or a woman is entitled to get the grace of god. During the time of king Ashoka women took part in religious preaching. According to Hiuen Tsang, the famous traveler of that time, Rajyashri, the sister of Harshavardhana was a distinguished scholar of her time. Another such example is the daughter of king Ashoka, Sanghmitra. She along with her brother Mahendra went to Sri Lanka to preach Buddhism. The status of women in Southern India was better than the North India. While in Northern India there were not many women administrators, in Southern India we can
  9. 9. 9 • find some names that made women of that time proud. Priyaketaladevi, queen of Chalukya Vikramaditya ruled three villages. Another woman named Jakkiabbe used to rule seventy villages. In South India women had representation in each and every field. Domingo Paes, famous Portuguese traveler testifies to it. He has written in his account that in Vijaynagar kingdom women were present in each and every field. He says that women could wrestle, blow trumpet and handle sword with equal perfection. Nuniz, another famous traveler to the South also agrees to it and says that women were writing accounts of employed in expenses, recording the affairs of kingdom, which shows that they were educated. There is no evidence of any public school in northern India but according to famous historian Ibn Batuta there were 13 schools for girls and 24 for boys in Honavar. There was one major evil present in South India of medieval time. It was the custom of Devadasis. Devadasis : It was a custom prevalent in Southern India. In this system girls were
  10. 10. 10 dedicated to temples in the name of gods and goddesses. The girls were then onwards known as 'Devadasis' meaning servant of god. These Devadasis were supposed to live the life of celibacy. All the requirements of Devadasis were fulfilled by the grants given to the temples. In temple they used to spend their time in worship of god and by singing and dancing for the god. Some kings used to invite temple dancers to perform at their court for the pleasure of courtiers and thus some Devadasis converted to Rajadasis (palace dancers) prevalent in some tribes of South India like Yellamma cult. The plight of women in medieval India and at the starting of modern India can be summed up in the words of great poet Rabindranath Tagore: "O Lord Why have you not given woman the right to conquer her destiny? Why does she have to wait head bowed, By the roadside, Waiting with tired patience, Hoping for a miracle in the morrow?" The statistics testifies to the brutalities afflicted on women folk
  11. 11. 11 Social Indicator India Infant Mortality Rate, per 73 1000 live births Maternal Mortality Rate, per 570 100,000 live births Female Literacy, % 58 Female School Enrollment 47 Earned Income by females, % 26 Underweight Children, % 53 Total Fertility Rate 3.2 Women in Government, % 6 Contraception usage, % 44 Low birth weight babies, % 33 Women's Reforms Struggle World 60 430 77.6 62 58 30 2.9 7 56 17 And though women of India are not at par with her counterpart in Western world but she is struggling hard to make her mark in men's
  12. 12. 12 world. We can count on certain names from the British India where women put the example of extraordinary bravery which even men might not be able to show. Rani Lakshmi Bai of Jhansi was the one such woman. She was the one who put even British rulers to shame with her extraordinary feats in battle. She fought for her kingdom, which Dalhousie, British Governor General, had unlawfully annexed. She was in a true sense the leader of uprising of 1857. There are certain men who took the cause of women in India. There have been social reformers like Raja Ram Mohan Roy, Ishwar Chandra Vidyasagar, Swami Vivekanand, and Swami Dayananda Saraswati who have helped women gain their previous status in society. Raja Ram Mohan Roy Born on 22nd may 1772 he was the torchbearer of social reforms for the women. He was strictly against the evils prevalent in society in his time. He is the one who has done
  13. 13. 13 women a great favor by abolishing Sati lawfully. It was due to his efforts that Lord William Bentinck banned the custom of Sati in 1829. Though this law was not a great deterrent but it changed mindset of people to some extent. Ram Mohan Roy also did great work in the field of women education. He was against child marriage and favored widow remarriage. He himself married a widow thus setting the example for the whole society. Along with 'Dwarka Nath Tagore' he founded "Brahmo Samaj" for the reform of Indian society and emancipation of women. Ishwar Chandra Vidyasagar Ishwar Chandra Vidyasagar was popularly known as Vidyasager, which means sea of knowledge. Testifying to his name he was truly the sea of knowledge. He was a pillar of social reform movement of Bengal in 19th century. He widely read ancient Hindu scriptures and came to know that the gender divide which was prevalent in Bengal was not encoded in our ancient texts instead it is the
  14. 14. 14 politics to keep women subordinate to men. He strongly supported women education in Bengal and went door to door to persuade people to send their girl child to school. He also did a lot in the field of widow remarriage. He opened many schools for girls. Mahatma Jyotirao Phule Born on April 11, 1827, Pune, Jyotirao Govindrao Phule was a real philanthropist. He was the one to open first girl school in India. He is also credited with opening first home for widows of the upper caste and a home for newborn girl children so that they can be saved from female infanticide. Swami Saraswati Dayananda He was the founder of Arya Samaj and gave a cry, "back to Vedas". He translated Vedas from Sanskrit to Hindi so that a common man can read it and understand that the Vedic Hindu scriptures gave utmost importance to women.
  15. 15. 15 He emphasized for the equal rights for women in every field. He tried to change the mindset of people with his Vedic teachings. Mahatma Gandhi The social reformers of 19th century laid down the stage for the emancipation of women but it was Mohan Das Karam Chand Gandhi under whose influence these reforms reached masses [r10]. He was the one who liberated Indian women from the clutches of 'Purdah' and other social evils. He brought them from their confinement and asked them to participate in the struggle for independence. According to him women should be liberated from the slavery of kitchen only then their true potential could be realized. He said that responsibility of household is important for women but it should not be the only one. In fact she should come forward to share the responsibilities of nation. When Gandhiji came to the stage of Indian struggle for independence then the average life span of Indian women was 27 years and only
  16. 16. 16 2%women were educated this shows what a Herculean task it was to bring the women of India who was not getting her basic rights to fight for the cause of the nation. But it was due to his efforts that so many women like Sarojini Naidu, Vijayalakshmi Pandit, Aruna Asaf Ali, Sucheta Kriplani and Rajkumari Amrit Kaur came forward. He spread the message of equality of the gender to the masses and criticized the desire of Indian people to have male child instead of a female. Gandhiji was strictly against the child marriage and favored widow remarriage. He urged the youth to come forward and accept young widows as their life partner. He said that the girls are also capable of everything boys can do but the need of the time is to give them opportunities so that they can prove themselves. It was mainly due to his efforts that when India got independence 'right to vote' came naturally to Indian women whereas in other developed nations like England and America women got this right very late and that too after lot of protest.
  17. 17. 17 Violence and the law As it explains, violence by men against women is a longstanding problem and remains widespread. Until recently it was sanctioned by the law's indifference. While it may not be possible to envisage a complete and comprehensive legal response to violence, either by the Commonwealth or the State and Territories, the level of tolerance of it in different areas of the law needs to be examined and addressed. A brief reading of judicial decisions across a range of different legal issues shows that violence is quite often a part of the background or context of a legal dispute but it is either ignored or treated as irrelevant. This is not to say, however, that courts always ignore or miss the violence in cases involving domestic relationships when the case is not one legally classified as 'about violence'. Indeed, the cases discussed below indicate that courts can respond to male violence against women. However, it was obvious from the response of women to the law that such judicial sensitivity to issues of violence was by no means uniform.
  18. 18. 18 Gender bias judiciary and the The Senate Standing Committee on Legal and Constitutional Affairs has recently examined the issue of gender bias in the judiciary. Its May 1994 report concentrates on issues of sexual violence against women. The Committee found that stereotypes deriving from historical, social attitudes which did not accept women's status as equal, autonomous citizens continue to be used. While the Senate Committee focused on particular cases of sexual assault that had received widespread media coverage, they suggested that it was not an adequate response to the issue of gender bias merely to hold individual judges responsible. They saw the problem a real, significant but largely unconscious problem of a systemic nature calling for multiple solutions. Violence education and legal
  19. 19. 19 In traditional legal education, violence against women is not typically a subject in the law course in its own right nor, more importantly, is it a topic in a general compulsory course such as property law, contract, equity or administrative law. While it is an essential and comparatively visible part of criminal law in courses in Australian law schools, it should also be a prominent part of all traditional law subjects. Violence is often part of the context of a case, or essential to understanding the dispute between the parties, even while it is not the central focus of the case. The federal Department of Employment, Education and Training (DEET) has recognized this by providing funds for the development of course materials on key thematic areas, including violence, for inclusion in core subjects within the law curriculum. Violence extends beyond the criminal law
  20. 20. 20 As a result of the ways in which legal categories are structured, there is a tendency to see violence as relevant only to the criminal or quasi-criminal law, largely the responsibility of the States and Territories, and not to consider it as having any relevance to a range of other non-criminal law issues. There may well be a tendency not to recognize it at all in other areas. There has been considerable law reform effort in Australia around criminal law issues such as rape and sexual assault, violence by men against women in the home, child sexual abuse and homicide laws. The focus has been on male violence against women in its clearest and most direct forms. This work, evident in the reports of various task forces, committees and inquiries, including the National Committee on Violence Against Women, has been essential to make violence against women a more prominent concern in traditional criminal law. There has been much less attention to violence which arises less directly in the law and may take other forms. For example, women are subjected to a variety of different injuries.
  21. 21. 21 They may be harmed in their workplaces and the streets by sexual harassment. They may be vilified or infantilized or sexualized in media representations. They may be harmed in a seemingly infinite variety of forms of pornography. They may also be injured through medical abuses, particularly in relation to their reproductive capacities. As young women, they may be distinctively harmed by the juvenile justice system. Abuses against women are perceived as a 'by-product' of war. Yet male violence against women is routinely ignored outside criminal or quasicriminal areas. Violence against women in case laws Now I shall deal with the facet relating to offences against women. The offences are of various types. They find mention in many enactments. These under- mentioned provisions are enumerated in Indian Penal Code, 1860: ¢ Section 304-B ----- dowry death ¢ Section 354 ----- Assault or criminal force to
  22. 22. 22 woman ¢ Section 361 ----- kidnapping from lawful guardianship ¢ Section 366 ----- kidnapping, abducting or inducing a woman ¢ Section 372 -----selling minor for purposes of prostitution ¢ Section 376 ----- rape ¢ Section 376-A ----- intercourse by a man with his wife during separation ¢ Section 376-B ----- intercourse by public servant with woman in his custody ¢ Section 376-D ----- intercourse by any member of the hospital with any woman in that hospital ¢ Section 494 ----- remarriage ¢ Section 498 ----- enticing or taking away or detain a married woman ¢ Section 498-A ----- dowry cruelty These are the main offences under the IPC against women. Certain offences are general against all women and certain offences are applicable in respect of married women.
  23. 23. 23 CLASSIFICATION OFFENCE OF 304B. Dowry death.—(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed 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 Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.] Punishment—Imprisonment of not less than 7 years but which may extend to imprisonment for life—
  24. 24. 24 Cognizable—Non-bailable—Triable Session—Non-compoundable. by Court of COMMENTS Applicability It was argued that the husband or any of his relative could be guilty of the offence only if he or she directly participated in the actual commission of the offence. This contention was rejected by the Andhra Pradesh High Court. It observed that in its real import, section 304B of the Indian Penal Code would be applicable if cruelty or harassment was inflicted by the husband on any of his relative for, or in connection with demand for dowry, immediately preceding the death by bodily injury or by burning. In short she should have died in abnormal circumstances within seven years of the marriage. In such circumstances the husband or the relative, as the case may be, will be deemed to have caused her death and will be liable to punishment; Vadde Rama Rao v. State of Andhra Pradesh, 1990 Cr LJ 1666. Burden of Proof
  25. 25. 25 The prosecution under section 304B of Indian Penal Code cannot escape from the burden of proof that the harassment to cruelty was related to the demand for dowry and such was caused “soon before her death”. The word “dowry” has to be understood as it is defined in section 2 of the Dowry Prohibition Act, 1961. Thus, there are three occasions related to dowry, i.e., before marriage, at the time of marriage and at an unending period. The customary payment in connection with the birth of child or other ceremonies, are not involved within ambit of “dowry”; Satvir Singh v. State of Punjab, AIR 2001 SC 2828: (2001) 8 SCC 633. Dowry (i) Where the evidence revealed that accused—husband killed deceased—wife for not satisfying his dowry demand but nothing on record to show involvement of co-accused in-laws with the offence committed by the accused, co-accused in-laws are not guilty of offence under sections 304B; Patil Paresh Kumar Jayanti Lal v. State of Gujarat, 2000 Cr LJ 223 (Guj). (ii) The parties were married on 24-5-1962. After staying in the matrimonial home for two months, she
  26. 26. 26 returned to her parents’ house and told them that her husband wanted a television set and a fridge. Her father gave her a sum of Rs. 6,000 and she left for the matrimonial home. Her husband again demanded a sum of Rs. 25,000 for purchasing a plot. Thereafter the husband took his wife to her parents’ home saying that he would not take her back unless a sum of Rs. 25,000 was paid to him. After one year he took her back but he did not give up the demand for Rs. 25,000. Soon thereafter she left for her parents’ home and came back with a sum of Rs. 15,000 with a promise that the rest of the amount would be paid later on. In her husband’s home she died of strangulation. The trial court found the accused guilty. The death of the deceased took place within seven years of marriage and persistent demands of dowry were made on her and she died under mysterious circumstances. The trial court framed charge under section 304B. The Supreme Court held that no ground for quashing the charge was made out; Nem Chand v. State of Haryana, (1994) 3 Crimes 608 (SC). Essential ingredients To attract the provisions of section 304B, one of the main ingredients of the offence which is required to be established is that “soon before her death” she was subjected to cruelty and harassment “in connection with
  27. 27. 27 the demand of dowry”; Prema S. Rao v. Yadla Srinivasa Rao, AIR 2003 SC 11. Expression ‘soon before her death’: meaning of The expression ‘soon before her death’ used in the substantive section 304B, I.P.C. and section 113B of the Evidence Act is present with the idea of proximity text. No definite period has been indicated and the expression ‘soon before her death’ is not defined. The determination of the period which can come within the term ‘soon before’ is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression ‘soon before would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence; Kaliyaperumal v. State of Tamil Nadu, AIR 2003 SC 3828. See also Yashoda v. State of Madhya Pradesh, (2004) 3 SCC 98. Presumption: Applicability
  28. 28. 28 (i) The presumption shall be raised only on proof of the following essentials:— (1) The question before the court must be whether the accused has committed the dowry death of a woman. (2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3) Such cruelty or harassment was for, or in connection with, any demand for dowry. (4) Such cruelty or harassment was soon before her death. Kaliyaperumal v. State of Tamil Nadu, AIR 2003 SC 3828. (ii) In dowry death cases and in most of such offences direct evidence is hardly available and such cases are usually proved by circumstantial evidence. This section as well as section 113B of the Evidence Act enact a rule of presumption, i.e., if death occurs within seven years of marriage in suspicious circumstances. This may be caused by burns or any other bodily injury. Thus, it is obligatory on the part of the prosecution to show that death occurred within seven years of marriage. If the prosecution would fail to establish that death did not
  29. 29. 29 occur within seven years of marriage, this section will not apply; Ratan Lal v. State of Madhya Pradesh, 1994 Cri LJ 1684. See also, N.V. Satyanandam v. Public Prosecutor, AP High Court, AIR 2004 SC 1708. Section 304B and Section 498A - Distinction Section 304B is a substantive provision creating a new offence and not merely a provision effecting a change in procedure for trial of a pre-existing substantive offence. As a consequence, accused cannot be tried and punished for the offence of dowry death provided in section 304B with the minimum sentence of seven years’ imprisonment for an act done by them prior to creation of the new offence of dowry death; Soni Devrajbhai Babubhai v. State of Gujarat, 1991 Cr LJ (313) (SC). Scope (i) A perusal of section 304B clearly shows that if a married woman dies otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband in connection with demand for dowry, such death shall be called “dowry death” and such
  30. 30. 30 husband or relative shall be deemed to have caused the death. The conditions precedent for establishing an offence under this section are as follows: (a) that a married woman had died otherwise than under normal circumstances; (b) such death was within seven years of her marriage; and (c) the prosecution has established that there was cruelty and harassment in connection with demand for dowry soon before her death; Baljit Singh v. State of Haryana, AIR 2004 SC 1714: (2004) 3 SCC 122. (ii) Offence under section 304B of the Indian Penal Code is triable by the Court of Session. It is a cognizable and non-bailable offence. The minimum punishment for the offence is seven years imprisonment which may extend to life imprisonment. Section 304B applies not only when death is caused by her husband or in-laws but also when death occurs unnaturally whoever might have caused it. The section will apply whenever the occurrence of death is preceded by cruelty or harassment by husband or in-laws for dowry and death occurs in unnatural circumstances. It may be emphasised that occurrence of death in such circumstances is enough though death might not have been in fact caused by the husband or in-laws. Thus the intention behind the section is to fasten death on the
  31. 31. 31 husband or in-laws though they did not in fact caused the death. Thus a fiction has been created. It is because in these circumstances, the misery and agony created thereby which compels the unfortunate married woman to end her life; Premwati v. State of Uttar Pradesh, 1991 Cr LJ 263. Unnatural death In-laws insisted dowry demands on one married young woman. Ultimately, it appeared that she was done to death and her body was cremated without sending any information to her parents or any relatives. The Supreme Court held that, if it was natural death, there was no need for the appellants to act in such unnatural manner and cremate the body in great and unholy haste without even informing the parents. In the result it was an unnatural death, either homicidal or suicidal. But even assuming that it is a case of suicide even then it would be death which had occurred in unnatural circumstances. Even in such a case, section 304B is attracted and this position is not disputed. Therefore,
  32. 32. 32 the prosecution has established that the appellants have committed an offence punishable under section 304B beyond all reasonable doubts; Shanti v. State of Haryana, AIR 1991 SC 1226. Assault or criminal force to woman Section 354. Assault or criminal force to woman with intent to outrage her modesty Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. CLASSIFICATION OF OFFENCE Punishment—Imprisonment for 2 years, or fine, or both—Cognizable—Bailable—Triable by any Magistrate—Non-compoundable. State Amendments Andhra Pradesh
  33. 33. 33 For section 354, the following section shall be substituted, namely— 354. Assault or criminal force to woman with intent to outrage her modesty.—Whoever assaults or uses criminal force to any woman intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven 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 of either description for a term which may be less than five years but which shall not be less than two years. Madhya Pradesh After section 354, the following new section shall be inserted, namely— 354A. Assault or use Criminal force to woman with intent to disrobe her.—Whoever assaults or uses criminal force to any woman or abets or conspires to
  34. 34. 34 assault or uses such criminal force to any woman intending to outrage or knowing it to be likely that by such assault, he will thereby outrage or causes to be outraged the modesty of the woman by disrobing or compel her to be naked on any public place, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to ten years and shall also be liable to fine.”. [Vide Madhya Pradesh Act 14 of 2004, sec. 3 (w.e.f. 212-2004)]. Orissa In the First Schedule to the Code of Criminal Procedure, 1973 in the entry under column 5 relating to section 354 of the Indian Penal Code 1860 for the word ‘bailable’ the word ‘non-bailable’ shall be substituted. [Vide Orissa Act 6 of 1995, sec. 3 (w.e.f. 10-3-1995)]. Comments Ingredients What constitutes an outrage to female modesty is nowhere defined. The essence of a woman’s modesty is
  35. 35. 35 her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word ‘modesty’ is not defined in I.P.C.; Raju Pandurang Mahale v. State of Maharashtra, AIR 2004 SC 1677. Section 361. Kidnapping from lawful guardianship Whoever takes or entices any minor under 1[sixteen] years of age if a male, or under 2[eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
  36. 36. 36 Explanation The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other person. Exception This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose. STATE AMENDMENT Manipur In section 361 for the words ‘eighteen’ substitute the word ‘fifteen’. [Vide Manipur Act 30 of 1950, sec. 3 (w.e.f. 16-41950), read with Act 81 of 1971, sec. 3 (w.e.f. 25-11972)]. COMMENTS Inducement not immediate cause
  37. 37. 37 The accused was charged for kidnapping a minor girl, below 15 years of age from the lawful guardianship of her father. It was established that the accused had an earlier stage solicited or induced minor girl to leave her father’s protection by conveying or indicating an encouraging suggestion, that he would give her shelter. Holding the accused liable for kidnapping under section 363, the Supreme Court said that the mere circumstances that his act was not the immediate cause of her leaving her parental home or guardian’s custody would constitute no valid defence and would not absolve him from the offence of kidnapping. The question truly falls for determination on the facts and circumstances of each case; Thakorilal D Vadgama v. State of Gujarat, AIR 1973 SC 2314: (1973) 2 SCC 413. Lawful guardian Where facts indicate that a girl left her father’s protection, knowing and having capacity to know the full import of what she was doing and voluntarily joined the accused, the offence of kidnapping cannot be said to have been made out; S. Varadrajan v. State of Madras, AIR 1965 SC 942. Use of word ‘keeping’: Meaning of
  38. 38. 38 The use of the word “keeping” in the context connotes the idea of charge, protection, maintenance and control; further the guardian’s charge and control appears to be compatible with the independence of action and movement in the minor, the guardian’s protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial: it is only the guardian’s consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section; Prakash v. State of Haryana, AIR 2004 SC 227. Section 366. Kidnapping, abducting or inducing woman to compel her marriage, etc. Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she
  39. 39. 39 will be forced or seduced to illicit intercourse shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; 1[and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely she will be, forced or seduced to illicit intercourse with another person shall be punished as aforesaid]. Punishment—Imprisonment for 10 years and fine— Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable. Section 372. Selling minor for purposes of prostitution, etc. Whoever sells, lets to hire, or otherwise disposes of any 1 [person under the age of eighteen 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
  40. 40. 40 term which may extend to ten years, and shall be liable to fine. [Explanation I When a female under the age of eighteen years sold, let for hire, or otherwise disposed of to a prostitute or to any person who keeps or manages a brothel, the person so 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. Explanation II 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 or, where they belong to different communities, of both such communities, as constituting between them a quasi -marital relation].
  41. 41. 41 Punishment—Imprisonment for 10 years and fine—Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable. [375. Rape A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:— First.— Against her will. Secondly.—Without her consent. Thirdly.— With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly.—With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.— With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome
  42. 42. 42 substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.— With or without her consent, when she is under sixteen years of age. Explanation Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception.—Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.] STATE AMENDMENT Manipur (a) in clause sixthly, for the word “sixteen” substitute the word “fourteen”; and (b) in the Exception, for the word “fifteen” substitute the word “thirteen”. [Vide Act 30 of 1950, sec. 3 (w.e.f. 16-4-1950) (made earlier than Act 43 of 1983)].
  43. 43. 43 COMMENTS Absence of injury on male organ of accused Where a prosecutrix is a minor girl suffering from pain due to ruptured hymen and bleeding vagina depicts same, minor contradictions in her statements they are not of much value, also absence of any injury on male organ of accused is no valid ground for innocence of accused, conviction under section 375 I.P.C. proper; Mohd. Zuber Noor Mohammed Changwadia v. State of Gujarat, 1999 Cr LJ 3419 (Guj). Penetration Mere absence of spermatozoa cannot cast a doubt on the correctness of the prosecution case; Prithi Chand v. State of Himachal Pradesh, (1989) Cr LJ 841: AIR 1989 SC 702. 376. Punishment for rape.—(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished 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 unless the
  44. 44. 44 woman raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: 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. (2) Whoever: (a) Being a police officer commits rape(i) Within the limits of the police station to which he is appointed; or (ii) In the premises of any station house whether or not situated in the police station to which he is appointed; or (iii) On a woman is his custody or in the custody of a police officer subordinate to him; or (b) Being a public servant, takes advantage of his official position and commits rape on a woman in his
  45. 45. 45 custody as such public servant or in the custody of a public servant subordinate to him; or (c) Being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or (d) Being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or (e) Commits rape on a woman knowing her to be pregnant; or (f) Commits rape when she is under twelve years of age; or (g) Commits gang rape, Shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life 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
  46. 46. 46 sentence of imprisonment of either description for a term of less than ten years. Explanation 1 Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection. Explanation 2 "Women's or children's institution "means an institution, whether called an orphanage or home for neglected women or children or a widows' home or by any other name, which is established and maintained for the reception and care of women or children. Explanation: 3 "Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation]. Para I
  47. 47. 47 Punishment—Imprisonment for life or imprisonment for ten years and fine—Cognizable—Non-bailable— Triable by Court of Session—Non-compoundable. Para II Punishment—Imprisonment for two years or fine or both—Non-Cognizable—Bailable—Triable by Court of Session—Non-compoundable. Comments Charge Section 376(2)(g) embodies a principle of joint liability and the essence of that liability is the existence of common intention; that common intention presupposes prior concert which may be determined from the conduct of offenders revealed during the course of action and it could arise and be formed suddenly, but there must be meeting of minds. It is not enough to have the same intention independently of each of the offender. In such cases, there must be criminal sharing, marking out a certain measure of jointness in the commission of offence; Ashok Kumar v. State of Haryana, AIR 2003 SC 777. Corroborative evidence
  48. 48. 48 Corroborative evidence is not an imperative component of judicial credence in every case of rape; State of Maharashtra v. Suresh Nivruthi Bhusare, (1997) 2 Crimes 257 (Bom). Medical evidence (i) Medical evidence corroborated by version of prosecutrix independent witness also in favour of the victim. No evidence of causing an unknown person a false implication at the cost of family name, conviction based on her evidence upheld; Lakha v. State of Rajasthan, 1999 Cr LJ 3418 (Raj). (ii) Where an innocent girl of just 9 years is caught hold and raped by accused, and FIR is lodged well in time, evidence of her testimony also corroborated by medical evidence, no evidence for false implication, failure on part of investigation are not enough to deny version of prosecutrix and other corroborative evidences; Najoor Ahmad v. State of Bihar, 1999 Cr LJ 2550 (Pat). Prosecutrix consenting to sexual intercourse (i) If a woman meekly submits to sexual intercourse it would be a case of consent; State of Maharashtra v. Suresh Nivrutti Bhusare, (1997) 2 Crimes 257 (Bom).
  49. 49. 49 (ii) Normally a woman would not falsely implicate for the offence of rape at the cost of her character. In Indian society, it is very unusual that a lady with a view to implicate a person would go to the extent of stating that she was raped; Madan Lal v. State of Madhya Pradesh, (1997) 2 Crimes 210 (MP). Rape and abetment to suicide It has been held that the concent cannot be inferred merely because co-accused was present in house at the time accused raped the victim. Neither can co-accused be convicted under section 376(2)(g) merely because victim girl allegedly stated before committing suicide that both of accused raped her; Ashok Kumar v. State of Haryana, AIR 2003 SC 777. Rape of a minor (i) Where a minor girl just 10 years of age raped by accused, a minor of 16 years on the date of incident, convicted and sentenced to 3 years R.I., therefore, since then many years added to his age, he cannot be even sent to an approved school under the Act and as such his conviction is maintained but sentence set aside; Bire
  50. 50. 50 alias Bir Bahadur Singh v. State of Uttar Pradesh, 2000 Cr LJ 87 (All). (ii) When the prosecutrix is a minor aged below 16 years, the question of her being a consenting party to the sexual intercourse does not arise or is of no consequence; Naresh v. State of Haryana, (1997) 2 Crimes 587 (P&H). Section 376B. Intercourse by public servant with woman is his custody Whoever, being a public servant, takes advantage of his official position and induces or seduces any woman, who is in his custody as such public servant or in the custody of a public servant subordinate to him, to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine]. Punishment—Imprisonment for five years and fine— Cognizable (but no arrest shall be made without a warrant or without an order of a Magistrate)— Bailable—Triable by Court of Session—Noncompoundable
  51. 51. 51 Section 376D. Intercourse by any member of the management or staff of a hospital with any woman in that hospital [376D. Intercourse by any member of the management or staff of a hospital with any woman in that hospital. —Whoever, being on the management of a hospital or being on the staff of a hospital takes advantage of his position and has sexual intercourse with any woman in that hospital, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for term which may extend to five years and shall also be liable to fine. Explanation The expression "hospital" shall have the same meaning as in Explanation 3 to sub-section (2) of section 376.] Punishment—Imprisonment for five years and fine— Cognizable (but no arrest shall be made without a warrant or without an order of a Magistrate)— Bailable—Triable by Court of Session—Noncompoundable.
  52. 52. 52 Section 494. Marrying again during lifetime of husband or wife Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 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.
  53. 53. 53 Punishment—Imprisonment for 7 years and fine— Non-cognizable—Bailable—Triable by Magistrate of the first class—Compoundable by the husband or wife of the person so marrying with the permission of the court. State Amendment Andhra Pradesh Punishment—Imprisonment for 7 years and fine— Cognizable—Non-bailable—Triable by Magistrate of the first class—Non-compoundable. Section 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.
  54. 54. 54 Punishment—Imprisonment for 2 years, or fine, or both—Non-cognizable—Bailable—Triable by any Magistrate—Compoundable by the person with whom the offender has contracted. Section 498A. Husband or relative of husband of a woman subjecting her to cruelty [498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation For the purpose of this section, “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 demand for any property or
  55. 55. 55 valuable security or is on account of failure by her or any person related to her to meet such demand.] Punishment—Imprisonment for 3 years and fine-Cognizable if information relating to the commission of the offence is given to an officer in charge of a police station by the person aggrieved by the offence or by any person related to her by blood, marriage or adoption or if there is no such relative, by any public servant belonging to such class or category as may be notified by the State Government in this behalf —Non-bailable—Triable by Magistrate of the first class—Non-compoundable. Comments Demand for Dowry and Ill-treatment (i) The wife petitioned for divorce on the ground of persistent demand made on her by her husband and inlaws. The High Court took the view that there was nothing wrong in these demands as money was needed by the husband for his personal use and in such a case wife should extend help. Reversing the judgment, the Supreme Court held that demand for dowry is prohibited under the law. That itself was bad enough; Shobha Rani v. Madhukar, AIR 1988 SC 121; see also
  56. 56. 56 Prakash Kaur v. Harijinderpal Singh, AIR 1999 Raj 46. (ii) The husband and his parents were greedy people. Their desire for dowry was insatiable. They went on demanding dowry even after two years of marriage, and since the parents of wife could not meet these, they started ill-treating her with a view to coercing her parens to give dowry. The Delhi High Court held that this amounted to cruelty; Adarsh Parkash v. Sarita, AIR 1987 Del 203. Demand for money Demand for money after four years of marriage for a specific purpose, no where related to marriage demand but causing of harassment to deceased wife so much so that she was bound to end her life is sufficient for conviction under section 498A; State of Punjab v. Daljit Singh, 1999 Cr LJ 2723 (P&H). Drunkenness No doubt drinking is a constituent of culture all over the world, and is almost a cult in certain societies. Yet, even here as elsewhere a habit of excessive drinking is a vice and cannot be considered a reasonable wear and tear of married life. No reasonable
  57. 57. 57 person marries to bargain to endure habitual drunkenness, a disgusting conduct. And yet it is not an independent ground of any matrimonial relief in India. But it may constitute treatment with cruelty, if indulged in by a spouse and continued, in spite of remonstrances, by the other. It may cause great anguish and distress to the wife who never suspected what she was bargaining for and may sooner or later find living together not only miserable but unbearable. If it was so, she may leave him and may, apart from cruelty, even complain of constructive desertion; Rita v. Brij Kishore, AIR 1984 Del 291. Object Section 498A was added with a view to punishing husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-technical view would be counter productive and would act against interests of women and against the object for which the provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent woman from settling earlier. That is not the object of Chapter XXA; B.S. Joshi v. State of Haryana,AIR 2003 SC 1386.
  58. 58. 58 Section 498A Evidence Act vis-a-vis section 113 of Section 498A of the Indian Penal Code or section 113A of the Indian Evidence Act has not introduced invidious classification qua the treatment of a married woman by her husband or relatives of her husband visa-vis the other offenders. On the other hand, such women form a class apart whom from those who are married more than seven years earlier to the commission of such offence, because, with the passage of time after marriage and birth of children, there are remote chances of treating a married woman with cruelty by her husband or his relatives. Thus, the classification is reasonable and has close nexus with the object sought to be achieved, i.e., eradication of the evil of dowry in the Indian social set-up and to ensure that the married women live with dignity at their matrimonial homes; Krishan Lal v. Union of India, 1994 Cr LJ 3472. Unhappiness between husband and wife Where the prosecution relied only on incident of unhappiness of deceased with her husband and the allegation was only in form of suggestion, it does not establish criminal offence under either or both of the
  59. 59. 59 charges, hence conviction under section 498A is improper; State v. K. Sridhar, 2000 Cr LJ 328 (Kant). Wilful Conduct The allegations against the husband were that he abused and beat his wife, forced her to have a common kitchen with a harijan family, accused her of adultery and of carrying in her womb someone else’s child, pressurizing her to agree for an abortion, and such other acts. This amounted to a wilful conduct of cruelty towards wife; Rishi Kumar v. State of Haryana, Criminal Appeal No. 335-B of 1985. Te apex court in State of Punjab v. Major Singh, while dealing with section 354 had interpreted the term 'women' denoting female of any age. It further held that an offence which does not amount to rape may come under the sweep of section 354, IPC. In this context the decision rendered in the case of State v. Musa is worth noticing. The aforesaid offence caught the eye of the nation when a senior police officer misbehaved with another senior officer belonging to the IAS
  60. 60. 60 cadre. The lady officer was slapped before the members of the elite society. Their Lordships (Supreme Court) observed that the observations made in the FIR were neither absurd nor inherently improbable. Finally the accused was acquitted. In Rupen Deo Bajaj v. Kanwar Pal Singh Gill, the Supreme Court said that the offence under this section should not be treated lightly as it is quite a grave offence. In certain western countries privacy to person and even privacy to procreation are regarded as very sacrosanct rights and if this offence is studied in that prospect the offence would clearly show that it affects the dignity of women and, therefore, the accused of this offence, when proved, should be appropriately dealt with. In People's Union for Democratic Rights v. Police Commissioner, Delhi, Police Headquarter and another, the supreme court after holding that the accused was guilty of offence under section 354 of IPC, awarded, to the victim, compensation which is to be recovered from the salary of the guilty officers.
  61. 61. 61 Rape Presently, I shall deal with the regard to offence of rape. Offence of rape is regarded as one of the most heinous crimes. Every person's physical body is a temple in itself. No one has the right to encroach and create turmoil. When there is any kind of invasion or trespass, it offends one's right. The right of a woman to live in her physical frame with dignity is an epitomization of sacrosanctity. An impingement or incursion creates a sense of trauma in the mind of the person. Not only does the body suffers but also the mind goes through such agony and tormentation that one may not be in a position to forget it throughout her life. She becomes a different person in the eyes of the society for no fault of hers. That apart the offence of rape is an offence which creates s a dent in the social marrow of the collective and a concavity in the morality of the society. In State of Haryana v. Mange Ram, their lordships (Supreme Court) gave emphasis highlighting that the evidence in the case of this nature should be appreciated on broader
  62. 62. 62 probabilities and the judge should not be carried away by insignificant contradictions. In State of A.P. v. Ganula Satya Murthy, the Supreme Court made an observation that it is an irony that while we are celebrating women's rights in all spheres we show little or no concern for their honour. Their lordships further observed that the courts must deal with rape cases with utmost sensitivity and appreciate the evidence of the totality on the background of the entire case and not on isolation. An aspect which needs to be stated here is that a woman who has been raped is not an accompliance. She is the victim of a carnal desire. In a case of rape, corroboration need not be searched for by the judge if in the particular circumstances of the cases before him he is satisfied that it is safe to rely on the evidence of the prosecutrix. If the prosecutrix is able to give a vivid account of how she was subjected to sexual harassment and the intercourse, the same can be placed reliance upon and the conviction can be recorded.
  63. 63. 63 In State of Maharashtra v. M.M. Madikar, it has been empathically laid down that there is rule or prudence requiring corroboration of the victims in a case of rape. At this juncture I may state that sometimes the trial courts give emphasis on absence of physical injuries, lack of corroboration by medical evidence, non-raising of alarm, no evidence of showing resistance and such other ancillary factors. From these angles the prosecution is disbelieved or the court arrives at the conclusion that there is consent. The apex court in the case of State of H.P. v. Mange Ram, has clearly laid down that if the prosecutrix submits her body under fear or terror the same would never amount to consent. In the said case their lordships also held that in the absence of any violence to the body of the victim in all circumstances would not give rise to inference of consent. In State of Rajasthan v. N.K. , wherein the supreme court held that the absence of injuries on the person of the prosecutrix is not necessary to falsify the allegation or be
  64. 64. 64 regarded as an evidence of consent on the part of the prosecutrix. Homicide and violence outside the criminal law One of the best known legal aphorisms is 'no man shall profit from his own wrong'. A common example given of this is the rule that a person cannot benefit under the will of someone that person has killed. However, the circumstances of some homicide cases, in which women have killed their husbands after a long history of abuse; have confronted some courts with the dilemma of how to apply this principle. For example, in a case the Supreme Court of Victoria was confronted with an application for probate by a woman named in her husband's will as his executor who had pleaded guilty to manslaughter. The judge noted that he had before him materials from the criminal proceeding, which demonstrated that the relationship involved violence or threats of violence directed by the deceased to his wife.
  65. 65. 65 The cumulative effect of the deceased's behavior was to engender in his wife a very real and understandable fear of him. After reviewing a number of authorities concerned with the principle, the Court decided, in view of its finding that her level of moral culpability was markedly diminished, that this was not a case in which the rule should operate to prevent the granting of probate. Similarly, in the NSW case Public Trustee v Evans, the Court decided that the forfeiture rule should not apply where the applicant had been subjected to a prolonged history of violence prior to the killing. Social security A coordinated response to domestic violence requires a rethinking of, among other things, housing and social security policies. In the
  66. 66. 66 context of social security, a history or current fear of violence may arise as an issue in a number of ways. For example, a sole parent may not wish to pursue child support from her former violent partner because she is in fear of him. This is a matter, which has been recognized by the Department of Social Security in its guidelines as forming a valid basis for an exemption from the obligation to pursue support from her ex-partner. Alternatively a woman may be overpaid entitlements as a result of pressure by a male partner to make a claim to which she is not entitled. It has also been suggested to the Commission that women who fear violence from their ex-partner may be more likely to plead guilty when confronted with criminal charges relating to overpayments, which may themselves flow from the violence by a partner. In one case recounted, a woman had pleaded guilty as she believed that this would prevent her ex-partner from finding her. It was suggested that if she had been prepared to plead not guilty and the matter gone to trial, she would most likely have been acquitted. It appears that there may be many situations in
  67. 67. 67 which men's violence against women (and children) may be central to the context of a case but not formally be an issue for decision. The Department of Social Security is preparing guidelines for staff on dealing with clients who are the targets of violence. However, this recognition of the impact of violence on clients has not been incorporated into the legislation which governs entitlements. There is another kind of violence in India as well as other countries. Just like as Acid throwing Acid throwing (acid attack or vitriol age) is a form of violent assault. It is defined as the act of throwing acid onto the body of a person "with the intention of injuring or disfiguring her out of jealousy or revenge". Perpetrators of these attacks throw acid at their victims, usually at their faces, burning them, and damaging skin tissue, often exposing and sometimes dissolving the bones. The long term consequences of these attacks include blindness and permanent scarring of the face and body.
  68. 68. 68 These attacks are most common in Cambodia, Afghanistan, India, Bangladesh, Pakistan and other nearby countries. According to Taru Bahl and M.H. Syed, 80% of victims of these acid attacks are female and almost 70% are under 18 years of age. Attacks in South Asia In South Asia, acid throwing attacks have been used as a form of revenge for refusal of sexual advances, proposals of marriage and demands for dowry. Scholars Taru Bahl and M.H. Syed say that land disputes are another leading cause. Afghanistan In Afghanistan in November 2008, extremists subjected schoolgirls to acid attacks for attending school. Bangladesh In Bangladesh, where such attacks are relatively common, they are mostly a form of domestic violence. The chemical agents most commonly used to commit these attacks are hydrochloric acid and sulfuric acid. According to Mridula Bandyopadhyay and Mahmuda Rahman Khan, it is a form of violence primarily targeted at women. They describe it as a relatively recent form of violence, with the earliest record in Bangladesh from 1983. The scholar Afroza Anwary points out that acid violence occurs not only in
  69. 69. 69 Bangladesh but also in Pakistan, China, and Ethiopia and has occurred historically in Europe. Cambodia In Cambodia, it was reported that these attacks were mostly carried out by wives against their husbands' lovers. Gaza In 2006 a group in Gaza calling itself "Just Swords of Islam" claimed to have thrown acid at a young woman who was dressed "immodestly," and warned other women to wear the hijab. India The Thomas Reuters Foundation survey says that India is the fourth most dangerous place in the world for women to live in as women belonging to any class, caste or creed and religion can be victims of this cruel form of violence and disfigurement, a premeditated crime intended to kill or maim her permanently and act as a lesson to put her in her place. In India, acid attacks on women who dared to refuse a man's proposal of marriage or asked for a divorce are a common form of revenge. Acid is cheap and easily available and is the quickest way to destroy a woman's life. The number of acid attacks has been rising in India and there have been 68 reported acid attacks in the state of Karnataka since 1999.
  70. 70. 70 Indian acid attack survivor Shirin Juwaley founded Palash Foundation to help other survivors with "psycho-social rehabilitation". She also spearheads research into social norms of beauty, speaks publicly, and blogs regularly at Do I Look ‘Normal’? In 2011, the principal of an Indian college refused to have Jewelry speak at her school for fear that Juwaley's story of being attacked by her husband would make students "become scared of marriage". Tom O'Neill of National Geographic reported that acid throwing is also used to enforce the caste system in modern India, where upper caste individuals often attack Dalits for supposedly violating the order. Iran Similarly, in the run-up to the Islamic Revolution from 1978–1979, Ayatollah Khomenei's supporters threw acid at hijab-free women and clean-shaven men in order to coerce the population into obeying strict Islamic mores. Pakistan According to New York Times reporter Nicholas D. Kristof, acid attacks are at an all time high in Pakistan and increasing every year. The Pakistani attacks he describes are typically the work of husbands against their wives who have "dishonored them".
  71. 71. 71 According to a Rand Corporation commentary, hundreds of women in Pakistan and Afghanistan have been blinded or maimed "when acid was thrown on their unveiled faces by male fanatics who considered them improperly dressed". Attacks or threats of attacks on women who failed to wear hijab or were otherwise "immodestly dressed" have been reported in other countries as well. Legislation In 2002, Bangladesh introduced the death penalty for throwing acid and laws strictly controlling the sales of acids. Under the Qisas law of Pakistan, the perpetrator may suffer the same fate as the victim, and may be punished by having drops of acid placed in his/her eyes. This law is not binding and is rarely enforced according to a New York Times report. Iran has a similar law, and sentenced an attacker to be blinded in 2008. However, as of July 31, 2011, Ameneh Bahrami pardoned her attacker, thereby absolving Majid Movahedi of his crime and halting the retributive justice of Qisas. Lower House of Parliament in Pakistan unanimously passed the Acid Control and Acid Crime Prevention Bill On May 10, 2011. As punishment, according to the bill individuals held responsible for acid throwing face harsh fines and life in prison. Over the past few years,
  72. 72. 72 acid throwing has been recognized by many countries as one of the latest and most excruciating forms of violence committed against women. Victims and treatment There is a high survival rate amongst victims of acid attacks. Consequently the victim is faced with physical challenges, which require long term surgical treatment, as well as psychological challenges, which require indepth intervention from psychologists and counselors at each stage of physical recovery.[citation needed] In Bangladesh, the Acid Survivors Foundation (ASF), Nairpokkho, Action Aid, and the Bangladesh Rural advancement committee’s Community Empowerment & Strengthening Local Institutions Programme assist survivors in Bangladesh. The Acid Survivors Foundation in Pakistan (ASF-P) operates in Islamabad offering medical, psychological and rehabilitation support. The Acid Survivors Foundation in Uganda (ASF-U) operates in Kampala and also provides counseling and rehabilitation treatment to victims of acid attacks, as well as their families if need be. Additionally in Cambodia, LICADHO, the Association of the Blind in Cambodia and the Cambodian Acid Survivors Charity (CASC) all assist survivors of acid attacks. The Acid Survivors Trust International (ASTI) provides specialist support to its sister organizations in
  73. 73. 73 Africa and Asia through its specialist team who work across the organizations transferring medical, psychological and social rehabilitation skills whilst supporting knowledge sharing and best practice. The Domestic Violence Act This act constituted as the boon for women but it could not become as a boon. Before it women are in worst condition after that the condition of them improve but not so what would think , the thinkers and maker of this act want to improve the condition of women of India which is very sad and worryable. Women suffered much a number of assaults belongs to many types of crimes related to law, society and morality that’s why this act constituted in great expectation. It’s constitutes for the welfare and goodness of women and their rights by which they get their existence. It give its best but……….
  74. 74. 74 Fundamental rights perspective Domestic violence is sadly a reality in Indian society, a truism. In the Indian patriarchal setup, it became an acceptable practice to abuse women. There may be many reasons for the occurrence of domestic violence. From a feminist standpoint, it could be said that the occurrence of domestic violence against women arises out of the patriarchal setup, the stereotyping of gender roles and the distribution of power, real or perceived, in society. Following such ideology, men are believed to be stronger than women and more powerful. They control women and their lives and as a result of this power play, they may hurt women with impunity. The role of the woman is to accept her ‘fate’ and the violence employed against her meekly. For long, the fairer sex has suffered at the hands of men, the exploitation ranges from physical to intangible abuse like mental and psychological torture. Women have been treated as child bearing machines, and if I may, then preferably male child bearing machines, pushover, to nothing but animals at the hands of
  75. 75. 75 men. Domestic violence is one of the gravest and the most pervasive human rights violation. For too long now, women have accepted it as their destiny or have just acquiescence their right to raise their voice, perhaps, because of the justice system or the lack of it or because they are vulnerable, scared of being ostracized by their own because domestic violence still remains a taboo for most women who suffer from it or for other reasons best known to them. But not any more! Women gear up-take control because of the domestic violence act, 2005. The Protection of Women from Domestic Violence Act (or the Domestic Violence Act) is a laudable piece of legislation that was enacted in 2005 to tackle this problem. The Act in theory goes a long way towards protection of women in the domestic setup. It is the first substantial step in the direction of vanquishing the questionable public/private distinction traditionally maintained in the law, which has been challenged by feminists time and again. Admittedly, women could earlier approach the Courts under the Indian
  76. 76. 76 Penal Code (IPC) in cases of domestic violence. However, the kinds of domestic violence contemplated by this Act, and the victims recognized by it, make it more expansive in scope than the IPC. The IPC never used the term domestic violence to refer to this objectionable practice. In fact, the only similar class of offences addressed by the IPC Dealt with cruelty to married women. All other instances of domestic violence within the household had to be dealt with under the offences that the respective acts of violence constituted under the IPC without any regard to the gender of the victim. This posed a problem especially where the victims were children or women who were dependant on the assailant. In fact, even where the victim was the wife of the assailant and could approach the Courts under S.498A of the IPC, she would presumably have to move out of her matrimonial home to ensure her safety or face further violence as retaliation. There was no measure in place to allow her to continue staying in her matrimonial home and yet raise her voice against the violence perpetrated
  77. 77. 77 against her. This, together with many other problems faced by women in the household, prompted this enactment. This commentary focuses on the constitutional perspectives of this progressive legislation. Important Provisions The Act, in a bold break from prior legislations, gives a very expansive definition to the term “domestic violence”, a term hitherto not even used in legal parlance. Domestic violence is defined in a comprehensive way in S.3 of the Act, comprising physical, mental, verbal, emotional, sexual and economic abuse, harassment for dowry, acts of threatening to abuse the victim or any other person related to her. An important addition to the law ensures that an aggrieved wife, who takes recourse to the law, cannot be harassed for doing so. Thus, if a husband is accused of any of the above forms of violence, he cannot during the pending disposal of the case prohibit/restrict the wife's continued access to resources/
  78. 78. 78 facilities to which she is entitled by virtue of the domestic relationship, including access to the shared household. In short, a husband cannot take away her jewellery or money, or throw her out of the house while they are having a dispute. A woman who is the victim of domestic violence will have the right to the services of the police, shelter homes and medical establishments. She also has the right to simultaneously file her own complaint under Section 498A of the Indian Penal Code. This piece of legislation, in my view has been long over due. It is a comprehensive law and addresses all issues related to women. It is for the first time that an act has been made to address women's issues in such detail. The Act is an extremely progressive one not only because it recognizes women who are in a live in relationship but also extends protection to other women in the household, including sisters and mothers thus the Act includes relations of consanguinity, marriage, or through relationships in the nature of marriage, adoption, or joint family thus, 'domestic relationships' are not restricted to
  79. 79. 79 the marital context alone. In fact the Act has given a new dimension to the word abuse because unlike the primitive notion abuse includes actual abuse or threat of abuse, whether physical, sexual, verbal, economic and harassment by way of dowry demands and thus, under the new law; The law will cover those women who are or have been in a relationship where both parties have lived together in a shared household, and are related by marriage or adoption. Preventing one's wife from taking up a job or forcing her to leave job are also under the purview of the Act. One of the most important features of the Act is that it also provides a woman a right to reside in the matrimonial and shared household, whether or not she has any title in the household. Husbands or live-in partners who would be guilty of domestic violence can be put behind bars for a year and fined Rs 20,000 and all crimes in the Domestic Violence Act are nonbailable. In addition to physical violence of beating, slapping, hitting, kicking and pushing, the Act also covers sexual violence
  80. 80. 80 like forced intercourse, forcing his wife or mate to look at pornography or any other obscene pictures or material and child sexual abuse. The new law also addresses sexual abuse of children and forcing girls to marry against their wishes. This certainly proves that the new Act has been formed keeping the current relationship culture in India and the irregularities in the previous Domestic Violence Laws in mind. The Act has also defined Physical Violence very comprehensively, as: Any kind of bodily harm or injury, A threat of bodily harm, Beating, slapping and hitting. Thus, physical violence is defined as any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health, or an act that impairs the health or development of the person aggrieved, or that includes assault, criminal intimidation and criminal force. But violence against women is not always physical. For the first time, the law has expanded the definition to include sexual, verbal and economic violence. Under the law, Sexual Violence will include: Forced
  81. 81. 81 sexual encounter, Forcing a woman to look at pornography or any obscene pictures, any act of sexual nature to abuse, humiliate or degrade a woman's' integrity. The new law is also tough on men who subject women to name calling or verbal abuse. While Verbal Violence is often trivialized as unimportant, observers say it can damage a woman's self-esteem. The Act defines Verbal Violence as: Name calling, any kind of accusation on a woman's character or conduct, Insults for not bringing dowry, preventing a woman from marrying a person of her choice, Any form of threat or insults for not producing a male child. Another significant step has been to recognize Economic Violence. Under the Act, Economic Violence is: Not providing money, food, clothes, medicines, causing hindrance to employment opportunities, forcing a woman to vacate her house, Not paying rent. The Act thus deals with forms of abuse that were either not addressed earlier, or that were addressed in ways not as broad as done here. For instance, it includes in its ambit sexual
  82. 82. 82 abuse like marital rape which, though excluded under the IPC, can now be legally recognized as a form of abuse under the definition of sexual abuse in this Act. The definition also encompasses claims for compensation arising out of domestic violence and includes maintenance similar to that provided for under S.125 of the Code of Criminal Procedure (Cr.P.C). Nevertheless, the claim for compensation is not limited to maintenance as allowed by that provision. It is noteworthy that the maintenance available under this section must be in correspondence with the lifestyle of the aggrieved party. Lastly, the Act identifies emotional abuse as a form of domestic violence, including insults on account of the victim’s not having any children or male children. Constitutional Perspective The enactment in question was passed by the Parliament with recourse to Article 253 of the Constitution. This provision confers on the Parliament the power to make laws in pursuance of international treaties, conventions, etc. The Domestic Violence Act
  83. 83. 83 was passed in furtherance of the recommendations of the United Nations Committee on the CEDAW. The Act encompasses all the provisions of the Specific Recommendations which form a part of General Recommendation no.19, 1992. Protection of Fundamental Rights Women and The Statement of Objects and Reasons declares that the Act was being passed keeping in view the fundamental rights guaranteed under Articles 14, 15 and 21. Article 21 confers the right to life and liberty in negative terms, stating that it may not be taken away except by procedure established by law, which is required, as a result of judicial decisions, to be fair, just and reasonable. The right to life has been held to include the following rights (which are reflected in the Act), among others:
  84. 84. 84 1. The right to be free of violence: In Francis Coralie Mullin v. Union Territory Delhi, Administrator, and the Supreme Court stated, any act which damages or injures or interferes with the use of any limb or faculty of a person, either permanently or even temporarily, would be within the inhibition of Article 21.This right is incorporated in the Act through the definition of physical abuse, which constitutes domestic violence (and is hence punishable under the Act). Physical abuse is said to consist of acts or conduct of such nature that they cause bodily pain, harm, or danger to life, limb or health, or impair the health or development of the aggrieved person . Apart from this, the Act also includes similar acts of physical violence and certain acts of physical violence as envisaged in the Indian Penal Code within the definition of domestic violence. By adoption of such an expansive definition, the Act protects the right of women against violence. 2. The right to dignity : In Ahmdabad Municipal Corporation v. Nawab Khan Gulab Khan, the Supreme Court emphasized
  85. 85. 85 the fact that the right to life included in its ambit the right to live with human dignity, basing its opinion on a host of cases that had been decided in favour of this proposition. The right to dignity would include the right against being subjected to humiliating sexual acts. It would also include the right against being insulted. These two facets of the right to life find mention under the definitions of sexual abuse and emotional abuse, respectively. A praiseworthy aspect of the legislation is the very conception of emotional abuse as a form of domestic violence. The recognition of sexual abuse of the wife by the husband as a form of violation to the person is creditable, especially as such sexual abuse is not recognized by the IPC as an offence. These acts would fall within the confines of domestic violence as envisaged by the Act, though the definition would not be limited to it. 3. The right to shelter: In Chameli Singh v. State of U.P., it was held that the right to life would include the right to shelter, distinguishing the matter at hand from Gauri
  86. 86. 86 Shankar v. Union of India where the question had related to eviction of a tenant under a statute. Ss. 6 and 17 of the Domestic Violence Act reinforce this right. Under S.6, it is a duty of the Protection Officer to provide the aggrieved party accommodation where the party has no place of accommodation, on request by such party or otherwise. Under S.17, the party’s right to continue staying in the shared household is protected. These provisions thereby enable women to use the various protections given to them without any fear of being left homeless. Article 14 contains the equal protection clause. It affirms equality before the law and the equal protection of the laws. Article 14 prohibits class legislation , but permits classification for legislative purposes. A law does not become unconstitutional simply because it applies to one set of persons and not another. Where a law effects a classification and is challenged as being violative of this Article, the law may be declared valid if it satisfies the following two conditions:
  87. 87. 87 1. The classification must be based on some intelligible differentia, 2. There must be a rational nexus between this differentia and the object sought to be achieved by the law. As a result of the ruling in cases such as Royappa v. State of Tamil Nadu , any law that is arbitrary is considered violative of Article 14 as well. This provision is significant in putting a stop to arbitrariness in the exercise of State power and also in ensuring that no citizen is subjected to any discrimination. At the same time, it preserves the State’s power to legislate for a specific category of people. Article 15 disallows discrimination on the grounds of religion, caste, sex, race, etc., but permits the State to make special provisions for certain classes of persons, including women and children. The Domestic Violence Act promotes the rights of women guaranteed under Articles 14 and 15. Domestic violence is one among several factors that hinder women in their progress, and this Act seeks to protect them
  88. 88. 88 from this evil. It indeed effects a classification between women and men, protecting only women from domestic violence, but this classification is founded on an intelligible differential, namely, gender, and also has a rational nexus with the object of the Act. Further, the Act is far from arbitrary, in that it is a well-thought and necessary attempt to curtail domestic violence and eventually vanquish it. It is to be remembered that it is generally women who are the victims of domestic violence, and not men. At this stage, it is also essential to keep in mind Article 15(3) which empowers the State to make legislations like this for the benefit of women, thus creating an exception in their favour against the operation of Article 15(1). While saying that the Act is protected by Article 15(3) from being considered discriminatory, it would help to recollect that this provision creates an exception in favour of women and children, and thus could be made use of to justify the extension of the Act to male children as well. Indeed, it would seem logical to do so. It is, however, opined
  89. 89. 89 that it is too early to predict the usefulness of this legislations to its target beneficiaries and the society as a whole. It needs to be seen whether the practicality of the Act has been ensured by the legislature and also the responsibility of implementation lies in the hands of the executive which will be the actual scale for measuring the effectiveness of this Act. Whether or not the act will be misused or not only time will tell for there cannot be any perceptible change in women's status overnight. It will take at least a decade before things change This bill will provide them a safeguard and a sort of sword in their hand so that they will not be seen as an animal or a shoe that you can wear anytime and throw anytime but at least some women would benefit which would set a precedent for others. It would be violative of the equality clause as also it would be discrimination on the basis of caste. Frowning upon this observation the Supreme Court stated, “In our opinion, the learned judge failed to appreciate that part III of the Constitution does not touch upon
  90. 90. 90 the personal laws of the parties. In applying the personal laws of the parties, he (the High Court judge) could not introduce his own concepts of modern times but should have enforced the law as derived from recognized and authoritative sources of Hindu laws, i.e. Smritis and commentaries referred to, as interpreted in the judgments of various High Courts, except where such law is altered by any usage or custom or abrogated by statute." Reynold Rajamani v. Union of India (1982 2 SCC 474).The excerpts of this judgment on which reliance was placed upon by the Supreme Court in the AWAG case pertain to prayers by the parties to increase the grounds available for divorce under the Indian Divorce Act. It was also argued in that Petition that divorce by mutual consent should be available even under the Indian Divorce Act. It was in this context that the Supreme Court observed that adding provisions to a Statute was a legislative act. The case did not deal with challenge to personal laws as being discriminatory to women.
  91. 91. 91 Pannalal Pitti v. State of A.P. (1996 2 SCC 498). This case dealt with validity of provisions of A.P. Charitable Hindu Religious and Endowments Act, 1987 and the argument was that laws should be made which are uniformly applicable to all religious or charitable endowments run by persons professing all religions. It was in this context that the Supreme Court observed that in a pluralistic society like ours making uniform laws cutting across religions could only be achieved in a phased manner and it was inappropriate to think "all laws have to be made uniformly applicable to all people in one go." Anil Kumar Mhasi v. Union of India (1994 5 SCC 704). In this case, additional grounds given to a woman for claiming divorce under the Indian Divorce Act were challenged as being discriminatory towards men. The challenge was rebuffed by holding that women did require special protection. What is significant about this judgment is that the Supreme Court did test the validity of some sections of the Indian Divorce Act (a personal
  92. 92. 92 law for Christians) on the touch stone of fundamental rights but on merits found the challenge to be unsustainable. The approach of the Supreme Court is clearly wrong and flies in the face of the Constitution. The Contrary View, on the other hand, in the following decisions the Supreme Court has tested aspects of personal laws on the touchstone of fundamental rights. Madhu Kishwar V. State of Bihar (1996 5 SCC 125). Certain provisions of Chotanagpur Tenancy Act, 1908 were challenged as being discriminatory towards women. While Court in this case refused to declare tribal customs en masse offending fundamental rights it kept the doors of such challenge open by holding, "..under the circumstances it is not desirable to declare the customs of tribal inhabitants as offending Articles 14, 15 and 21 of the Constitution and each case must be examined when full facts are placed before the court."In this case, the Court went into the Constitutionality of the law and read down the provisions so as to bring them in line with womens' right to livelihood under Article 21 of the Constitution.
  93. 93. 93 Githa Hariharan v. Reserve Bank of India (1999 2 SCC 228) a three judge Bench of the Supreme Court was considering the Constitutional validity of S. 6 of the Hindu Minority and Guardianship Act. The challenge was on the basis that the section discriminates against women, as the father is the natural guardian of a minor and not the mother. The Court did not reject the Petition on the ground that it could not go into Constitutional validity of personal law. Instead it read down S.6 so as to bring it in consonance with Articles 14 and 15. The Court observed in Para 9, Is that the correct way of understanding the section and does the word 'after' in the section only mean 'after the lifetime'? If this question is answered in the affirmative, the section has to be struck down as unconstitutional as it undoubtedly violates gender equality, one of the basic principles of our Constitution. The Hindu Maintenance and Guardianship Act came into force in 1956, i.e. six years after the Constitution. "Similarly S. 19(b) of the Guardians and Wards Act would also have to be construed in the same manner in which we have construed
  94. 94. 94 Section 6(a) The Hindu Maintenance and Guardianship Act ." Of course, the decision is not very satisfactory as the Constitutional mandate required the Supreme Court to hold that irrespective of whether the father was unfit or not the mother should also be given equal rights as a natural guardian. Failure of the Act : The Act could play a stellar role in protection of women’s rights in the household and in guarding them from domestic violence. In the very first instance, a recognition of domestic violence as something unacceptable, where it has become yet another social practice, is necessary and indeed, commendable in a patriarchal society. Having recognised the rights of women and the violation of these rights, the next step taken is providing innovative and efficacious remedies to enforce the same. The conceptualization of the Act thus far is admirable. However, one thing that the writers feel is amiss in the Act is the fact that it brushes aside male children. Though there are interpretations to the contrary, it is the opinion of the writers that the Act does not
  95. 95. 95 extend its protection to male children. Firstly, an aggrieved person as defined by the Act is a woman who is, or has been in a domestic relationship with the respondent. While the Act does define a child as any person below the age of eighteen years, the definition of domestic violence itself refers at all stages only to an aggrieved person and not to a child; the only relevant place in which a child is mentioned is S.18(c), where it is stated that a Magistrate may pass a protection order restraining the respondent from entering the school of the child where the aggrieved person is a child. It is the opinion of the writers that this in itself is not sufficient to construe the Act as applicable to male children as well. Arguably, it could be said that the Act was passed to cater to the needs of women and not boys. After all, the very title of the Act indicates that it has been enacted to protect the rights of women. Yet, it must be kept in mind that domestic violence, though predominantly faced by women, be they wives, mothers, sisters or daughters, is also aimed against male children at times. It seems a poor
  96. 96. 96 excuse to say that male children should not be provided easily accessible relief from domestic violence simply because of their gender. Even if other forms of violence could be adequately addressed by the IPC (though this hardly seems the case), it is a fact that the sexual abuse of male children cannot be redressed in any apposite manner by it. Reference may be had to the Sakshi case , and the subsequent 172nd Law Commission report, where it was argued, among other things, that the offence of rape as addressed in the IPC be defined in gender-neutral terms, so that the protection could be extended to male children as well. This was necessary keeping in mind the increased and increasing instances of sexual abuse of children, male and female. Once it is acceded that male children are affected as much by sexual abuse by female children, it must be accepted that they need to be protected from such abuse within the “private” sphere too. On the face of it, there seems to be no concrete reason for denying male children protection from domestic violence.
  97. 97. 97 Domestic Violence versus Honor Killing Domestic violence is a significant problem in the United States. Between 1989 and 2004, 21,124 women died at the hands of an intimate; 8,997 men died in domestic violence during the same time period. Because the U.S. Department of Justice does not catalogue the victim's or murderer's age, religion, ethnic background, or immigration status, it is not possible to know what proportion of these killings are honor-related. Unni Wikan, a social anthropologist and professor at the University of Oslo, defines honor killing as "a murder carried out as a commission from the extended family, to restore honor after the family has been dishonored. As a rule, the basic cause is a rumor that any female family member has behaved in an immoral way." While honor killings are just a minority of total domestic violence in the United States and Canada, they constitute a distinct phenomenon. A 2008 Massachusetts-based study found that "although immigrants make up an estimated 14 percent of the state's population, [they, nevertheless,] accounted for 26 percent of the 180 domestic violence deaths from 1997-2006."