INTRODUCTION

CHAPTER - 1

1
 Chapter – 1
INTRODUCTION

India is honoured as mother land. The very concept implies that Indian people respect
women very much. Indeed, in India women are worshipped like Goddess as a symbol of
Shakti (power) and Shanti (peace).Like Maa Durga, dual character manifest in her. She
nurtures her offspring as a lakhsmi in one side and kills the demons on the other as a kali.
She is grihalakshmi. She is the centre of the family. She does household work, brings up
children, perform official work in one hand. Cultural foundation of India is based on the
principle that no nation can progress unless it respects the women1. Indian people believe
that “Where the women are honoured, there all deities are pleased and where they are
dishonoured, there all religious acts become fruitless.”2

But, this is a mythological story now; the faded glory of Indian womanhood.
Over the decades, there has been a shocking decline in moral values all around the world
and India is not an exception of it. Now-a-days we are very much conscious about the
rights of women, but we are quite indifferent towards the dignity of women.

During last few decades there has been a remarkable change in the thoughts of
the people and that has also been reflected in our domestic legislation relating to women.
As a result women have undertaken a new task beyond their traditional role and have
actively participated in the economic and social development of the nation. In a versatile
country like India, no generalization could be appropriate to the nation’s social,
economic, cultural, religious and regional diversities. A familiar reality of Indian
women’s lives is that they are generally restrained within home and have been
constrained to the role of a house-keeper. If we go through the historical background of
status of women in India in different ages, we can see that despite India’s reputation for
respecting women, they have also been subjected to ill treatment.

1
Swami Vivekananda.
2
Manusmriti;- III,56

2
1.Ancient India - During the Vedic period men and women enjoyed equal right.
They had equal opportunities in the matter of education. Women’s position was
dignified. Liberal attitudes and practices towards women were prevailing. Women
actively participated in religious and social matters. Great women like Gargi, ghosa,
Apala, Lopamudra, Atreyi acquired excellence in art, music, dance etc. They were also
free to choose their marriage partner. In the matrimonial home, they were honoured as
‘grihalaksmi’ and she was the very centre of the family life. Men also could not perform
any religious ceremonies without wife. In short, both boys and girls stood on an equal
footing. The system of polygamy was only prevalent in the ruling class. There was no
prohibition in the remarriage of a widow. Girls were permitted to undergo thread
ceremony, ‘Sati’ was unknown. Dowry system also did not exist. Some gifts were given
to son-in-law at the time of marriage among the high classes of people, but they were
given by parents or relatives of bride or bride groom out of love and affection, not as a
compulsion

The position of women in post Vedic period was not far above the ground.
Actually, the honored position which they enjoyed during Vedic period gradually started
declining. Heredity began to be traced by male only and sons were considered as the sole
heirs to inherit property. Men’s status began to rise and on the contrary women’s status
began to fall. The position of women suffered a setback during this period as various
kinds of restrictions were imposed on women by many Dharmashastrakars like Manu.
Manu was the propounder of male dominated society, who says – “Marriage establishes
the supremacy of the husband over the wife and Husband is the lord and master of his
wife even if devoid of all virtues.” He had also prescribed many codes of conduct
regarding the behavior of women. Gradually women were excluded from all outside
affairs and centered within the four walls of home under the protection of father, husband
or son. Child marriage was encouraged and the marriageable age was lowered to 9 or 10.
Women’s education was neglected. Widow marriage was looked down upon. The birth
of girl child was considered as an ill sign. The practice of Sati became quite wide spread
because of the ill treatment meted out to widows. But surprisingly during this period
women’s property right was recognized especially stridhan property. However, in this
era, women suffered great hardship due to prevailing unfavourable atmosphere caused by
Sati, dowry system child marriage etc.

3
2. Medieval India - The medieval period introduced a situation, where Women’s
position reached a maximum degree of deterioration due to the repeated invasion of India
by various aggressors like Alexander and Huns etc. For the safety of women, their
mobility, participation in community work and educational activity were restricted and
they were put behind the veil. This age is called a dark age for women. Women were
deprived from enjoying any kind of rights. Due to illiteracy and ignorance, women
became an easier subject to exploitation. Social evils like child marriage, Sati dowry,
polygamy, infanticide, devdasi had made the life of women troublesome. The practice of
dowry was rampant during those days. The religious gurus gave the wrong idea about the
holy texts and created an impression that all these evil practices had religious sanction.

3. India during British period - When the British took over India, the
position of women in Indian society was in a very bad state due to inhuman socio-
religious practices. However, in the next phase of British reign, it has undergone through
some changes. Due to Western impact on the Indian society, two major movements took
place. We can name it as (1) Social reform movement in favour of women and (2)
Nationalist movement. The reform movement in favour of women raised the problem of
equal status of women, the problem of Sati, child marriage, women’s property right,
Purdah, prohibition on widow remarriage denial of education etc. Nationalist movement
also generated confidence among women to raise their voice against the socio-religious
exploitation. However, as a result of the constant pressure of the Indian reformist, several
legislations were enacted by the Britishers like Widow’s Remarriage Act, 1856, Child
Marriage Restraint Act, 1929, Hindu Women’s Right to Property Act, 1937. To bring
reforms smoothly in India, legislations renovating the family structure were introduced
in Princely States without much opposition. In Baroda divorce provision was introduced
for the first time. The Princely state of Mysore enacted the Infant Marriage Prevention
Act of 1894. Malabar part of Madras Presidency and Travancore also introduced such
reform. It is very important to mention here that these laws were not proved very fruitful
as it could not stop violation of these laws across their borders. In brief, we can say that
it failed to achieve its purpose because of the slow motion of the progress rate of women
welfare movement. On the other hand heavy land taxes were imposed by the Britishers.
Therefore, poor families were inevitable to find money cash from wherever they could

4
get, otherwise they had to lose their land. As a result the dowry increasingly came to be
seen as a vital source of income for the husband’s family.

4. Post Independence Period - After independence, Women’s Welfare was

the primary concern of the society. Many efforts have been made by the reformer to
improve the situation of women. Though, many have expressed doubt regarding the
capability of women to play equal role with men. But such trepidations are already
proved insincere. Scientific inventions and modern technology have uncomplicated the
discrepancy between men and women on the basis of physical force alone. Women can
now easily control modern appliances by applying their mind and sometimes by getting
proper training. Gradually people are taking flexible attitude towards women and their
role in the family and society. Our Constitution ensures equality to men and women and
also gives special protection to women to comprehend their interests effectively. Articles
14, 15 and 16 of the Indian Constitution guarantee that there will be no discrimination on
the basis of religion, race, caste, sex or place of birth. However, Article 15(3) empowers
the state to make special provisions for the advancement of women and children. This is
a protective measure. Such Privileges are given to women and children only to enable
them to stand against the odds of life because physically they are weaker sexes. Article
32 also deserves special mention in this regard. The right to life is guaranteed under
Article 21 of the Constitution of India gives meaning to the life of human being. Our
Government has enacted multiple legislations for the protection of the right and interest
of the working women in different field. The Equal Remuneration Act, 1976 grants equal
pay for equal work. Factories Act, 1948 seeks to provide crèche for children of women
workers. Maternity leave are provided to the female workers under the Maternity Benefit
Act, 1961. Article 23 of the Indian Constitution guarantees the right against exploitation.
It prohibits traffic in human beings and forced labour. Article 24 prohibits employment
of children below 14 years of age in factories, mines or other hazardous employment.
Under Article 32(2) of the Indian constitution, Supreme Court can issue writ for the
enforcement of the fundamental rights. However, the objectives of Article 39 is to build
a welfare society by providing equal rights to men and women, by giving adequate
means of livelihood, by securing just and humane conditions of work and for maternity
relief. In response to the above Principles, Several legislations were passed by the
Government of India to uplift the status of Women. However, Articles 243D and 243T

5
are also inserted to our constitution by 73rd and 74th Amendment in 1992 to provide for
the reservation of seats to the women in Elections to the Panchayat and the
Municipalities.

Indian Penal Code also empowers women with numerous rights to prevent the
crime against women like causing miscarriage (Sections 312-318), offences against the
modesty of a women which are punishable under Section 354 and 509 IPC, dowry deaths
(Section 304B) abetment to commit suicide (Section 306) harassment by husbands and in
laws (Section 498A). Several other legislation have been enacted for protecting women
from gender crimes, such as the Dowry Prohibition Act, 1961, the Medical Termination
of Pregnancy Act, 1971, the Indecent Representation of Women (Prohibition) Act, 1986,
Domestic violence Act, 2005 etc. Thus, special laws were enacted to give women equal
rights in the matter of adoption, maternity benefits, equal pay, good working conditions
etc.

The Indian Evidence Act also incorporates Sections 113A and 113B in
connection with the presumption of dowry death. When a woman dies within seven years
of her marriage under unnatural circumstances and it is suspected that the death is caused
due to cruelty or harassment by the husband and in-laws in connection with the demand
of dowry, the court will presume that such death is dowry death. To curb the evil practice
of dowry, the Dowry Prohibition Act, 1961 was passed. Though before independence
some enactments were passed like Sind Deti-Leti Act, 1939, Bihar Dowry Restraint Act,
1950 and Andhra Pradesh Dowry Prohibition Act, 1958, but these acts were not
successful to achieve its goal.

Criminal procedure code also provides some safeguards for women like the
maintenance of wife, children and aged parents. The other important provisions relating
to women are Sections 125 to 128 160,165, 179, 181,198-A and 327 of the Code. The
main legislative tool for combating trafficking in persons in India is the immoral Traffic
(prevention) Act of 1956 (ITPA) which was amended again in 1986. India liberalized its
abortion law by enacting the Medical Termination of Pregnancy Act, in 1971. The aim of
the Indecent Representation of Women (Prohibition) Act, 1986 is to prohibit indecent
representation of women The Commission of Sati (Prevention) Act, 1987 provides for
the more effective prevention of the commission of sati and its glorification. To prevent

6
misuse of infanticide and foeticide, the pre-natal Diagnostic Techniques (Regulation and
prevention of Misuse) Act 1994 was passed. For the protection of the working women,
the Factories Act, 1948, the Mines Act, 1952 and the Equal remuneration Act, 1976 were
enacted.

At the international level, the UN Charter, the Universal Declaration of Human

Rights, two human rights covenants, Convention on Elimination of All Forms of
Discrimination against Women (CEDAW), four world conferences, the Commission on
Human Rights, the Commission on the Status of Women secured better legal protection
to women.

However, despite the enactment of many laws on various aspects at national and
international level, the condition of women remains unaffected. Violence, exploitation,
discrimination, torture etc. bother a woman throughout the entire life. Her birth is
unwanted. She is a trouble to her family and parents become experience liberated when
the daughter is sent to the matrimonial home. These cases once again conveyed the
conventional patriarchal attitude of the society. Now, in the matrimonial home, she is
subjected to various kinds of torture by the husband and in-laws. Every day from the
newspaper we come to know that outraging the modesty of a woman, harassment by
husband and in-laws, dowry deaths, suicides, kitchen accident wife beating etc are the
common incidents of women’s life.

5. Need of the present Study - The condition of Indian Women is quite

contradictory in nature. There are many amazing examples of successful women at
different levels, but at the same time violence, discrimination, torture, and exploitation
etc. make the life of others miserable. Women are no longer a child bearer and care taker
of home only but come out of home to fight for their own identity. They are human being
like their fellow men and enjoy same rights and duties with men. They have achieved a
lot, but they have yet to achieve so many things. Despite these advancements, the
problem of rural women, and the women belonging to the Dalit, Tribal, Wandering
communities and women working in unorganized sector stay untouched.

7
 In spite of the existence of several protective instruments at the national and
international level women continue to be victims of violence, exploitation,
discrimination and torture. If we are not very much cautious about the problem and take
a grave steps to control the situation, it will become extremely crucial. In the words of
Justice P.N. Bhagwati, there should be revolution by law otherwise there will be
revolution against law. It is no doubt true that any attempt to assess the status and
problem of women in a society should start from the social framework. Social structure,
cultural norms, and value systems are crucial determinants of women’s role and their
position in society. In respect of the status there is a gap between the theoretical
possibilities and their actual realization.3 Indian women have to suffer repression from
mother’s womb to sepulcher.

Under the circumstances, I feel it appropriate to make a thorough analysis of the

rights of women, loopholes in the existing laws, loopholes in the decision making
process of the Judiciary and to search the real cause of dowry death by conducting some
survey work. Actually, deprived a woman by killing her at that segment of life where she
is expected to be most valuable is no doubt the most dreadful. Hence, I have selected this
topic to achieve that purpose.

6. Objectives - The main objectives of the study are (1) an analysis of the protective
measures for women in the International Law. (2) An evaluation of the Safeguards
provided by the Indian Constitution. (3) A discussion of the loopholes in the existing
laws especially law relating to dowry. (4) An analysis of the role being played by Indian
Judiciary. (5) To discuss whether the laws and legal System etc. are adequate to protect
women. (6) To search the real cause of dowry death. (7) To examine the alternative
Strategies. (8) To suggest some remedial measures.

7. Hypotheses
1. Greed for money is the root cause of dowry related violence against women.
2. The existing legal system and laws are deficient and inadequate.
3. Inadequacy in the laws relating to dowry generated offences resulting
contradictory sentences

3
http://www.csss-isla.com/Status_report/pdf, Last visited on 22February, 2011

8
 4. Ineffective enforcement of the legal provisions especially in case of dowry
related violence contributes to a large number of acquittals.
5. The insensitivity of the human being results in gender injustice

8. Methodology - The study will be mainly doctrinal and partly empirical. For the
purpose of doctrinal study, data will be collected from various sources like Books,
Articles, Magazines, Newspapers, and Law Journals etc. However, the empirical study
will be completely based on critical analysis of the primary data. As the study will
specifically cover the area of West Bengal, some survey will be conducted in five
districts of West Bengal regarding educational background, occupation, social position
etc. of the victims and spouses.

9. Plan of the Study - Thus the whole project may be divided into six chapters.
The introductory chapter may contain the need for study, clear statement of the problem,
objectives of the study, hypotheses, methodology adopted in the study. The second
chapter may deal with the various international legal instruments in favour of women.
The third chapter may examine the legislative response at the national level with special
reference to dowry death in West Bengal. The fourth chapter may be an analysis of the
judicial response towards women protection. The fifth chapter may present an empirical
study relating to dowry related offences in the state of West Bengal. The final chapter
may highlight on conclusion and suggestions.

Thus the study should have the following chapters.

1. Introduction.
2. Women protection under International Law.
3. Legislative response towards Women protection – An analysis with Special
reference to Dowry deaths in West Bengal.
4. Role of Judiciary towards women protection.
5. An empirical study over dowry related offences.
6. Conclusions and suggestions.

9
WOMEN PROTECTION UNDER
INTERNATIONAL LAW

CHAPTER - 2

10
 Chapter - 2
WOMEN PROTECTION UNDER
INTERNATIONAL LAW

“The history of mankind is a history of repeated injuries and usurpations on the part of
man toward woman, having in direct object the establishment of an absolute tyranny
over her.” (Seneca Falls convention, 1848)

The concern for Women’s Protection is not of recent origin. It dates back to Seneca Falls
in 1848. The entire World Community realized the necessity to take stringent and
adequate measures for the development of women’s right much later. Actually the notion
of women’s right comes from the advancement of human rights. Thus the history of
advancement of women’s right is a history of development of human rights. Women
suffered subordination in silence for centuries. The philosophers like Plato, Bentham,
Aristotle, Rousseau, Locke, Hobbes, John Stuart Mill etc. highlighted in their writings
the different role of women in the society in different centuries and at the same time
opined for the need for the equal status of women with men.

General people took very little interest about women’s movement at that time. It
was only confined within the women of privileged class. Robert Owen4, Frances wright5,
Caroline Chisholm6, Harriet Beecher Stowe7, Elizabeth Fry8 Elizabeth Garrett
Anderson9, were some writers, who tried to change the position of women by their
powerful writings.10 Women worked hard for their families, but, at the same time
struggled revolutionarily to get equality with men.

4
(14 May 1771 – 17 November 1858) was a Welsh social reformer and one of the founders of utopian
socialism and the cooperative movement
5
(1792 – 1852) a Scot woman who advocated advanced idea by education
6
(1808-1877) was a British-born author and philanthropist, whose work with immigrant families, women
and children ensured the successful colonization of Australia.
7
(June 14, 1811 – July 1, 1896) was an American abolitionist and author.
8
Elizabeth Fry, whose work was commemorated as part of the Social Reformers issue of 1976 (designed
by David Gentleman), and poet and campaigner
9
The first woman to become a Doctor in Britain and the first female Mayor in England, family planning
pioneer Marie Stopes, Member of Parliament and women’s rights campaigner
10
http://en.wikipedia.org/wiki/Women's_rights, Last visited on November 24th 2010

11
 By 19th century many important laws were passed empowering women the right
to vote, the right to separation, right to alimony, right to control their own property. The
American Revolution, French Revolution, 2nd World War also created many new
occasions for the development of women’s right. During this period, the feminists were
very active. Philosophers like Thomas Paine, John Stuart Mill and Hegel expanded the
theory of individual rights. With the growth of business and laws, scope for employment
of women was also increased. Spread of education, industrial revolution, American
independence and the World Wars were some of the factors, which made the women
conscious regarding their rights.11

During19th century, women's movements assumed greater importance to include

every problem that women face every day in the economic, social, political matters.
Further, the international concern, the active support of many countries, conscious effort
of various organizations, around the world made the path easy for women's movements
in the next century. By the 20th century, a radical social change has been seen in the
name of human rights. Some changes were also identified in the conditions of workers
like labour unions permitted the workers the right to strike, established minimum work
conditions and also regulated child Labour. The women were granted the right to vote.
Various movements were succeeded during this period in many parts of the world.

However, multiple different international legal instruments have been prepared

by different international institutions to deal with the various problems of women. To
know the existing status of women under international law, we have to go through the
provisions of these instruments. While evaluating the provisions of these conventions, I
have identified these documents as protective, corrective and non discriminatory
provision on the basis of the nature of the documents.12 Each category gives a separate
idea about a desirable status, what a woman should get in society.

However, the protection of women’s right under international law will be

discussed into three parts – (1) International consensus up to 1944 (2) Development of
women’s rights from1945 to 1975 and (3) Current international consensus.
11
http// family.jrank.org/.../Women-s-Movements-Civil-Rights-Women-s-Movements, Last visited on 24th
November, 2010
12
Natalie Kaufman Hevener; “International Law and the Status of Women” Westview press; Boulder,
Colorado.

12
 PART –I
International Consensus up to1944

The concept of ‘women protection’ is based on the notion of recognition of the

dignity of the women as a human being. It was a period, when fight for the women’s
rights has not been an object of discussion, both worldwide and at regional level. Before
1945, International Law regulated relations between States only. Individuals were not
subjects of International Law. Thus, the promotion and protection of an individual’s
rights was the responsibility of the States. Though, a State was under an international
obligation to guarantee certain basic rights to their nationals which are fundamental in
nature, which is called ‘immutable unwritten laws of heaven’13. And in case of gross
violation of such human rights by one state, the other state or states can take necessary
steps against the violator state.

It is very pertinent to mention that before 1945, some doctrines and institutions
were developed throughout the worldwide with the aim of protecting some groups of
people: slaves; religious, ethnic, and cultural minorities; indigenous peoples; foreigners;
victims of massive human rights violations; combatants in wars etc. Despite its
limitation, these institutions influenced the creation and development of women’s right
in International Law. However, such documents are as follows

1. The Magna Carta- The Magna Carta, 1215 is considered as the most
significant constitutional document of all human history. The main aim of it was to
protect people from the arbitrary acts of the king, but at the same time the Charter
guaranteed certain basic civil and legal rights to citizens. It ensured some rights to
women also, like a widow will get her marriage property (including property taken as a
dowry) and inheritance right immediately after the death of her husband and without
difficulty and she will remain in the house of her husband for forty days, within which

13
Sophocles; Antigone, The Unwritten, unchanging laws of the Gods

13
her dowry shall be assigned to her.14 The charter also said that no widow shall be forced
to marry so long as she wishes to live without a husband.15

2. Bill of Rights - An Act Declaring the Rights and Liberties of the Subject and
Settling the Succession of the Crown is popularly known as the Bill of Rights. It is an
Act of British Parliament. It is one of the important pillar upon which English
constitutional law is based on. The Bill of Rights 1689 deals with some positive rights
which a national of a country should have. It gives emphasis on the individual's right to
petition to the King and to bear arms for defense. In addition to the rights provided for
individuals in Magna Carta, It also provides some rights for those who are represented in
Parliament. It restates that in some constitutional matters the actions of the Crown
require the consent of the Parliament. The Bill incorporated the provision that although
some people may inherit privileges, all women and men enjoy the same basic rights
which can’t be violated even by a Head of State, who is also subject to, not above, the
law. The Bill also states that the Crown and others authorities have responsibilities
towards the people and they are answerable to them for their activities. There is no doubt
that Universal Declaration and other human rights instruments have taken the notion
from it.16

3. The Declaration of American Independence - The Declaration of

Independence was a statement adopted by the Continental Congress on July 4, 1776,
which declares independence of American colonies from the British Empire. With the
declaration of independence of the United States, it asserts some natural and legal rights.
It states “All men are created equal, that they are endowed by their creator with certain
unalienable Rights, that these are Life, Liberty, and the pursuit of Happiness”. It also
provides with some guidelines for the protection of the rights of marginalized group
worldwide. However, it is considered as a major statement on human rights.17

14
Paragraph 7, Magna Carta
15
Paragraph 8, Magna Carta
16
See Supra note 10 at p.11
17
Ibid.

14
4. The Declaration of the Rights of Women and of the Female
citizen- The Declaration of the Rights of Man and of the citizen1789, the basic
document of French Revolution is no doubt important in the history of mankind. The
declaration introduced a new social and political order and served as the basis for many
Constitutions, framed in different countries. It declares Rights are “self evident” and
“unalienable”. Though, women played a significant role in the French Revolution, it did
not recognize the women’s rights. Hence, women drew attention to the need for gender
equality and presented the Declaration of the Rights of Women and of the Female citizen
in 1791. It is modeled on the Declaration of the Rights of Man and of the Citizen and
highlights the provision of equality for men and women like men and women are born
and remain free and equal in rights, social distinctions may be founded only upon the
general good, all have the rights to life, liberty and property and it is the duty of the govt.
to ensure these rights. The declaration states, “This revolution will only take effect when
all women become fully aware of their deplorable condition, and of the rights they have
lost in society”.18

5. The Seneca Falls Convention - The Seneca Falls Convention is one of the
most important women’s right conventions held in Seneca Falls, New York in 1884. It is
considered as a revolutionary beginning of the struggle of women for complete equality
with men and American women’s suffrage movement. It was the first time when women
and men gathered together for women’s right to vote. The convention demanded for the
equality of women with men in the family, education, jobs, religion, and morals. It dealt
with the social, civil and religious rights of women. 300 men and women signed it.

6. The Geneva Conventions - The Geneva Conventions came into being

between 1864 and 1949. The conventions repeatedly stated that women shall be treated
with all consideration due to their sex. The conventions aims to protect the human beings
from the consequences of war and follow on from the1899 and 1907 Hague Convention,
which provide for the regulation of conduct of hostilities, limit the means to cause injury
to enemy and to give better protection to the combatants and war victims.19

18
Ibid.
19
U.Chandra, “Human Rights” Allahabad Law Agency Publications (2007)

15
 Though in the beginning the judicial conscience of the civilized world was not
ready to safeguard the rights of individuals against its violation by states, but later it
realized that rights of the individual must be universalized so that it may be guarded
against its violation by one’s own state20. Hence, many attempts have been seen to be
made from various levels to promote human rights throughout the world.

7. League of Nations - In 1919, the League of Nations was established on the

basis of the Treaty of Versailles after 1st world war. Though, its object is to prevent war
through amicable settlement of international disputes between countries, but its Charter
imposes on it many obligations like protection and promotion of individual rights. It’s
important task were to maintain peace, to protect minorities, to give equality in
treatment, affording ample rights to minorities with regards to the conservation of their
language, their religion, their schooling system, and even foresaw certain political
rights.21 Article 22 prohibits abuse of a person as a slave in those colonies and territories
which as a consequence of the late war have ceased to be under the sovereignty of the
States which formerly governed them and establishes conditions which will guarantee
freedom of conscience and religion. Article 23 of the Covenant states that members of
the League of Nations will endeavour to secure and maintain fair and humane conditions
of labour for men, women, and children, and, for that purpose will establish and maintain
the necessary international organization. Accordingly, International Labour Organization
(ILO) was created as an agency of the League of Nations to make constant research and
development in the area of worker’s rights. However, the primary goal of ILO today is to
promote opportunities for women and men to obtain decent and productive work, in
conditions of freedom, equity, security and human dignity.22

8. Convention Concerning Night Work of Women - Another

important convention relating to women is the Convention Concerning Night Work of
Women Employed in Industry. It was drafted in 1919 by the General Conference of
the International Labour Organization (ILO), and was revised and modified in 1934
and 1948.It gives a broad definition of “night”, with some qualifications, as the hours

20
Ibid.
21
Ibid.
22
Report by the Director General for the International Labour Conference 87th Session

16
between 10:00 PM and 7:00 AM. The convention states that women without distinction
of age shall not be employed during the night in any public or private industrial
undertaking, or in any branch thereof, other than an undertaking in which only members
of the same family are employed.23 The intent is clearly to protect women from working
in an undesirable time, but to some extent men tried to control women in the name of
protective legislation.24

9. Maternity Protection Convention 1919 - Convention on maternity

benefits is also an important convention relating to women. The International Labour
Organization adopted the Maternity Protection Convention, in 1919. It assures many
important rights for pregnant women and nursing mothers, regardless of marital status.
Such benefits are paid leave before and after childbirth,25 job protection during maternity
leave,26 and nursing during the job “at times prescribed by national laws or
regulations,27” the compulsory postnatal leave for not less than six weeks.28 This
Convention was further modified and expanded in 1946 and 1952. The Convention tries
to secure that after child birth a woman may continue to work and to nurse her child
concurrently. Thus woman’s job and her health are made secure during and after the
child birth.

10. International Instruments Relating to the Traffic of

Women for Prostitution - Before1945, there were four international
instruments relating to the traffic of women for prostitution. Beginning with an
agreement in 1904, and extended through conventions in 1910, 1921, and 1933, the
world community has attempted to regulate prostitution at an international level through
imposing various kinds of restriction on the transporting of women and children for
immoral purposes. These conventions are International Agreement for the Suppression of
the White Slave Traffic of 1904; International Convention for the Suppression of the
White Slave Traffic 1910; and International Convention for the Suppression of the
Traffic in Women and Children 1921and the International Convention for the
23
Article 3, CNWEI 1919
24
See Supra note 12 at p.12
25
Articles 3 and 4 MPC 1919
26
Articles 6 MPC 1919
27
Article 5 MPC 1919
28
Article 4 MPC 1919

17
Suppression of the Traffic of Women of Full Age 1933. The 1904 agreement aimed to
ensure that women and girls are protected against criminal traffic known as the ‘White
Slave Traffic’. The 1910 Convention focused on the criminalization of trafficking. In
1921convention, ‘white slave traffic’ was replaced by ‘traffic in women and children’, to
include all kinds of trafficking of women and children of both sexes. Thus, for the first
time, male children are recognized as the victims of trafficking. The Convention requests
the signatory states to take necessary measures to punish the offender of trafficking as
well as to inform women and children about trafficking.29

Convention 1933 states, “ Whoever, in order to gratify the passions of another

person, has procured, enticed or led away even with her consent, a woman or girl of full
age for immoral purposes to be carried out in another country, shall be punished,
notwithstanding that the various acts constituting the offence may have been committed
in different countries”.30 The convention further states that the Parties to the present
Convention further agree to punish any person who Keeps or manages, or knowingly
finances or takes part in the financing of a brothel knowingly lets or rents a building or
other place or any part thereof for the purpose of the prostitution of others.31 Thus it
makes the punishment procedure more stringent.

11. 1926 Slavery Convention - Another important conventions, adopted by

the International Labour Organization, were 1926 Slavery Convention and the 1930
Forced Labour Convention. Slavery convention (1926) is the first international treaty,
adopted by the League of Nations that defines slavery and slave trade and request
governments to abolish slavery. The slavery convention defined ‘slavery’ as “the status
or condition of a person over whom any or all of the powers attaching to the right of
ownership are exercised.”32and ‘slave trade’ as “all acts involved in the capture,
acquisition or disposal of a person with intent to reduce him to slavery; all acts involved
in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal
by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in

29
www.freedomfromfearrmagazine.org/index.php?...trafficking; Last visited on 23October 2011
30
Article 1, CSTWFA 1933
31
Article 2, CSTWFA 1933
32
Article 1(1), Slavery Convention 1926

18
general, every act of trade or transport in slaves”33. The Convention declares that States
parties should prevent compulsory or forced labour. The Slavery Convention includes
not only domestic slavery but also the other forms of slavery. It includes debt bondage,
serfdom, servile forms of marriage, the exploitation of children and adolescents etc. The
convention clearly states that such practices should be restricted.34

12. Forced Labour Convention, 1930 - The Forced Labour Convention,

1930 aims to prevent forced labour. The 1926 Convention's definition of slavery was
made wider to include forced or compulsory labor in 1930. It defines forced or
compulsory labour as “all work or service which is exacted from any person under the
menace of any penalty and for which said person has not offered himself voluntarily”35.

However inspired by the League of Nations, many international organizations

come to fight for the recognition of basic rights of human being as a human being with
different developmental programmes for the women and children. The institute of
international law issued a proclamation in 1929, declaring the duties of every state. It
stated that all human beings are entitled to the equal right to life, liberty, property
together with all subsidiary right essential for the enjoyment of these basic rights without
distinction of nationality, race, sex, language and religion. It aims to impose a code of
conduct to be followed by all the states. The Declaration no doubt helped to open a new
process for internationalization of human rights.36

These documents did not deal with a general and systematic protection of human
rights. As a result women’s rights were also not developed properly. However, there had
been a tremendous growth in the concept of women’s right after the Second World War
under the protection of the United Nations Charter and the Universal Declaration of
Human Rights. But, the League of Nations created the path for the growth of human
rights in the inter-war period37.

33
Article 1(2), Slavery Convention 1926
34
www.ohchr.org/Documents/Publications/slavery.Last visited on 0ctober 18, 2011
35
Article 2(1) Forced labour Convention 1930
36
See Supra note 19, at p.15
37
Ibid.

19
 PART –II
Development of women’s right from 1945 to 1975

The women’s rights are inalienable, fundamental and inseparable part of human
rights. The complete development of women’s personality, freedom and their equal
involvement in political, social, economic and cultural life are sine qua non for
international as well as national development. Thus discrimination in any form against
women is violative of human rights and fundamental freedoms. To prevent all these
injustice against women, the united nation drafted various instruments for protection of
women’s right and dignity.

The international agreements discussed within the period between 1945 to1975
is very important for the protection of the Women’s right under International law
because during this period most important international instruments relating to women’s
right were drafted and modified like United Nations charter, The Universal Declaration
of Human Rights, 1948. International Covenants on Human Rights, the Mexico city
conference etc. It is relevant to record the achievement of the UN in the field of women's
rights since1945. Besides the adoption of the UN Charter in 1945, the following
achievements are worthy of mention:

1. United Nations Charter - The preamble of the Charter assures for the
reaffirmation of “faith in fundamental human rights, in the dignity and worth of the
human person, in the equal rights of men and women and of nations large and small.”
The Charter lays down that the aim of the United Nations is “to achieve International co-
operation in solving international problems of an economic, social and cultural, or
humanitarian character, and in promoting and encouraging respects for human rights and
fundamental freedoms for all without distinction as to race, sex, language or religion.”38
Some one of the principal commentators on the United Nations Charter states that,
together with maintaining peace and international security, the other key point of this

38
Article 1,U.N.Charter

20
preamble was the respect of human rights39The provision for equality of women with
men has been enshrined in the Charter, which lays down that “the United Nations shall
place no restrictions on the eligibility of men and women to participate in any capacity
and under conditions of equality in its principal and subsidiary organs.”40 Thus equality
of opportunity has been assured to the women in the matters of participation in the work
of the United Nations.

The Charter also lays emphasis upon “promoting international co-operation in the
economic, social, cultural, educational and health fields, and assisting in the realization
of human rights and fundamental freedoms for all without distinction as to race, sex,
language or religion.41 Again, it gives emphasis upon the promotion of universal respect
for, and observance of, human rights and fundamental freedoms for all without
distinction as to race, sex, language or religion.42 Thus the principle of equality of men
and women in the matter of promotion and observance of human rights and fundamental
freedoms has been fully established under the Charter of the United Nations. This
principle of equality has been further emphasized under various major international
human rights instruments, prepared and adopted under the auspices of the United
Nations. The aim of the charter however, is to impose obligation on the States to take
action for the promotion of human rights. It states “all Members pledge themselves to
take joint and separate action in co-operation with the Organization for the achievement
of the purposes set forth in Article 55”.43

The charter also stated that ECOSOC “shall set up commissions in economic and
social fields and for the promotion of human rights…” which means ECOSOC has the
power to create all the commissions necessary for the performances of its function.44
Thus it empowers the Economic and Social Council of the United Nations (ECOSOC)
the power to create all the commissions necessary for the performance of its functions.
Accordingly, ECOSOC created the Commission on Human Rights in 1946, a body

39
COT, J-P. and PELLET, A.: “Préambule”, in COT, J-P. and PELLET, A. (sous la direction de): La
Chartedes Nations Unies, Commentaire article par article, Economica, Paris, 1985, p. 7.Ref.
https://doc.amnesty.org. Last visited on 11Sept, 2011
40
Article 8,U.N.Charter
41
Article 1(3) U.N.Charter
42
Article 55,U.N.Charter
43
Article 56 U.N.Charter
44
Article 68 U.N. Charter

21
which would have as the main task of the production of the Universal Declaration of
Human Rights and other international human rights instruments.

There are some loopholes in the provisions of the charter like it does not define
human rights, nor does the Charter includes a list of human rights and there is no
enforcement machinery for the violation of the provisions of the charter.45 However, “the
inclusion of human rights provisions in the Charter changed the parameters of the debate
and introduced radically new principles into world politics and International Law”.46
Gradually, the United Nations Charter became the basic documents for the
internationalization of human rights.

The provisions of United Nations Charter can be termed as non discriminatory. It

tried to revise the legal system in such a way so that sex will no longer be a basis for
differential treatment and if any differences exist between the sexes, it tried to eliminate
those differences. It tries to give a definition of women who is free from all obstacles and
can work in a condition, where both men and women have equal rights for their self
fulfillment within the society. These provisions are no doubt necessary for the future
development of women.47

2. Universal Declaration of Human Rights - The Universal Declaration

of Human Rights, adopted by the General Assembly in 1948.As we know Universal
Declaration of 1948, together with other human rights instruments is collectively known
as the ‘International Bill of Human Rights.’ These three documents were to form what
René Cassin called the “Human Rights Charter”48The Universal Declaration of Human
Rights is the first general, legal and international instrument of human rights with a
universal character.49 Thomas Buergenthal states, “because of its moral status and the
legal and political importance it has acquired over the years, the Declaration ranks with
the Magna Carta, the French Declaration of the Rights of Man and the Citizen (1789),

45
Felipe Gómez Isa Koen de Feyter; “International Protection of Human Rights: Achievements and
Challenges” (2006),University of Deusto Bilbao, source- https://doc. amnesty.org/.../Last visited 11th Sept
2011
46
JHABVALA, F.: “The Drafting of the Human Rights Provisions of the United Nations Charter”, op. cit.,
p. 2.Ref- Ibid.
47
See Supra note 12 at p.12
48
See Supra note 45, at p.22
49
ibid.

22
and the American Declaration of Independence (1776), as a milestone in mankind’s
struggle for freedom and human dignity”.50

The Preamble recognizes the inherent dignity and the equal and inalienable rights
of all members of the human family. It is important to mention that it reaffirmed its faith
in “the equal rights of men and women”. It is no doubt a triumph for women’s
movement. Accordingly, it states that all human beings are born free and equal in dignity
and rights. They are endowed with reason and conscience and should act towards one
another in a spirit of brotherhood.51 The expression “all human beings” bears a great
meaning and includes men and women both. The Declaration highlights the principle of
non discrimination and says that everyone is entitled to all the rights and freedoms set
forth in this Declaration, without distinction of any kind, such as race, colour, sex
language, religion, political or other opinion, national or social origin, property, birth or
other status.52 To advance this goal, the UN established a Commission on Human Rights
to materialize the provisions of human rights. In relation to the principle of non-
discrimination which is found everywhere in the Universal Declaration, the role played
by the Commission on the Status of Women is also worth mentioning.

The Declaration makes an exhaustive list of human rights, applicable to all

without any discrimination. It guarantees that everyone has the right to life, liberty and
security of person53 and prohibits slavery and the slave trade in all its forms.54 It also
assures that no one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment as these acts work horribly against human dignity,55 but,
unfortunately, torture and other similar practices especially against women still exist in
our society. The principle of equality before the law and non-discrimination are also
guaranteed by it.56 Under the Declaration, all are equal before the law and are entitled to
equal protection of the law without any discrimination. It also recognizes the right to an
effective remedy by the competent national tribunal and assures that no one shall be

50
BUERGENTHAL, T.: International Human Rights in a Nutshell, West Publishing Co., Minnesota,
1988, pp. 25 and 26; Ref.- Supra note 39 at p.21
51
Article 1 U.D.H.R.
52
Article 2 U.D.H.R
53
Article 3 U.D.H.R
54
Article 4, U.D.H.R
55
Article 5 U.D.H.R
56
Article 7 U.D.H.R

23
subjected to arbitrary arrest, detention or exile and at the same time says that everyone is
entitled in full equality to a fair and public hearing by an independent and impartial
tribunal i.e. the right to due process of law.

The Declaration protects people’s private and family life, right to freedom of
movement, residence as well as the right to freely leave the country, right to seek
asylum, right to a nationality to change nationality etc. It guarantees the equality of men
and women as regards marriage with the free and full consent of the intending spouses57
and states that men and women of full age, without any limitation due to race, nationality
or religion, have the right to marry and to found a family. All are entitled to equal rights
as to marriage, during marriage and at its dissolution. The marriage shall be entered into
only with the free and full consent of the intending spouses.58 The family is the natural
and fundamental group unit of society and is entitled to protection by society and the
State59. Though, it ensures equality of men and women as regards marriage, it directly
contradicts with Islamic law and is not accepted by Muslims.60

Beside these the Declaration also ensures right to property, right to freedom of
thought, conscience and religion, freedom of opinion and expression, freedom of
peaceful assembly and association, participation in politics, right to work, equal pay, just
remuneration, right to freely join a trade union, right to rest, leisure, a reasonable
limitation of working hours, and periodic holidays with pay etc. Another important right
guaranteed by the Declaration is the right relating to the recognition of an adequate
standard of living for all human beings. It states that everyone has the right to a standard
of living adequate for the health and well-being of himself and of his family, including
food, clothing, and housing and medical care and necessary social services, and the right
to security in the event of unemployment, sickness, disability, widowhood, old age or
other lack of livelihood in circumstances beyond his control61. It also states that
motherhood and childhood are entitled to special care and assistance62. All children,
whether born in or out of wedlock, shall enjoy the same social protection. So it is also

57
Article 16(1),U.D.H.R
58
Article 16 (2),U.D.H.R
59
Article 16(3),U.D.H.R
60
TABANDEH, S.: A Muslim Commentary of the Universal Declaration of Human Rights, F.T. Goulding
& Company Limited, London, 1970, p. 35.ref- https://doc.amnesty.org. Last visited on Sept 12, 2011
61
Article 25(1)U.D.H.R.
62
Article 25(2)U.D.H.R

24
important from women’s point of view. According to the declaration, education should
be free and compulsory “at least in the elementary and fundamental stages” and higher
education “shall be equally accessible to all on the basis of merit”63. It states that the aim
of the education should be the full development of the human personality and to the
strengthening of respect for human rights and fundamental freedoms. It shall promote
understanding, tolerance and friendship among all nations, racial or religious groups, and
shall further the activities of the United Nations for the maintenance of peace. In my
view most of the Articles of these branches are very important from women’s point of
view.

Universal Declaration of Human Rights contains an exhaustive list of human

rights. The whole Declaration is based on the philosophical-legal principle of the dignity
of the human being. From this come the postulates of liberty, equality, and fraternity.64
The completely non-discriminatory nature of this instrument is evident in its provision in
respect of life, liberty marriage, privacy, health, work, arrest detention etc. It includes
corrective provisions, protective provisions and non-discriminatory provisions. From the
women’s point of view U.D.H.R. no doubt plays a significant role as all the articles of
the Universal Declaration starts with “everyone” and “no one”. It means that the
principle of non-discrimination is the basis of the Universal Declaration. Thus all the
articles are applicable to men as well as women. The special reference in respect of
mothers indicates its respect for women as workers, officeholders and house wives.
Johannes Morsink stated that “the internal history of the drafting process and the
struggles involved in reaching the final product, show that from the point of view of the
rights of women the Declaration is a remarkably progressive document”.65

Though, the Universal Declaration of Human Rights, 1948 was not a legally
binding document. The Declaration also does not offer us the actual meaning of the word
dignity but, it gives us a clear idea about human rights and fundamental freedoms in

63
Article 26 U.D.H.R
64
BLAZQUEZ, N.: “El recurso a la dignidad humana en la Declaración Universal de Derechos Humanos
de las Naciones Unidas”, in Dignidad de la Persona y Derechos Humanos, Instituto Pontificiode Filosofía,
Madrid, 1982, p. 110. Ref- See Supra note 45, at p.22
65
MORSINK, J.: “Women’s Rights in the Universal Declaration”, Human Rights Quarterly, Vol. 13,
1991, pp. 233 ff

25
order to inspire us to work for their materialization66.India is a signatory to the Universal
Declaration of Human Rights, 1948. Indian constitution is strongly influenced by the
provisions of the U.D.H.R. Most of the provisions of the part III of the Indian
constitution are identical with the Declaration. The influence of the UDHR has been
substantial on the constitutions of most of the countries. It is regarded by the people "as a
common standard of achievement for all people and all nations," and thus it got the status
of customary international law.67

3. The Human Rights Covenants - U.N. General Assembly with the aim to
establish enforcement mechanism adopted the two Covenants in1966; (1) International
Covenant on Civil and Political Rights (ICCPR) and its optional protocol (2)
International Covenant on Economic, Social and Cultural Rights (ICESCR). The two
International Covenants, together with the Universal Declaration and the Optional
Protocols, comprise the International Bill of Human Rights.

3.1. International covenant on economic, social and cultural rights – The

covenant states that the States Parties to the present Covenant undertake to guarantee that
the rights enunciated in the present Covenant will be exercised without discrimination of
any kind as to race, colour, sex, language, religion, politics or other opinion, national or
social origin, property, birth other status. Thus it imposes an obligation on the state
parties to ensure to all individuals the rights recognized in the Covenant without any
discrimination.68

The States Parties to the present Covenant also undertake to ensure the equal
right of men and women to the enjoyment of all economic, social and cultural rights set
forth in the present Covenant. It implies that all human beings should equally enjoy the
rights provided in the Covenant. Consequently, it says that States parties are responsible
for ensuring the equal rights of men and women to enjoy all economic, social and
cultural rights of this Covenant without any discrimination.69

66
Vibha Arora & S.C Tripathi.( 2004 )” Law relating to women and children “; Allahabad ; Central Law
Publications.
67
www1.umn.edu/humanrts/instree/b1udhr Last visited on January 12,2012.
68
Article 2 ICESCR
69
Article 3, ICESCR

26
 Under Article 10, States Parties to the present Covenant recognize that the widest
possible protection and assistance should be provided to the family, which is the natural
and fundamental group unit of society, particularly for its establishment and while it is
responsible for the care and education of dependent children. Marriage must be entered
into with the free consent of the intending spouses. Special protection should be
accorded to mothers during a reasonable period before and after childbirth. During such
period working mothers should be given paid leave or leave with adequate social security
benefits. Special measures of protection and assistance should be taken on behalf of all
children and young person without any discrimination for reasons of parentage or other
conditions. Children and young person should be protected from economic and social
exploitation. Their employment in work harmful to their morals or health or dangerous to
life or likely to hamper their normal development should be punishable by law. States
should also set age limits below which the paid employment of child labour should be
prohibited and punishable by law.

It implies that men and women should be equally treated in respect of marriage
and they should enter marriage only with their free and full consent. States parties are
under an obligation to ensure equal rights and obligations for both spouses. During
childbirth, special care and protection should be given to the mother. Health and strength
of child and young person which is injurious to their health should also be protected.
Child labour should be prohibited.

The right of everyone to the enjoyment of the highest attainable standard of

physical and mental health is also recognized by the state parties of the present covenant.
The steps to be taken by the States Parties to the present Covenant to achieve the full
realization of this right shall include those necessary for the provision for the reduction
of the stillbirth-rate and of infant mortality and for the healthy development of the
child.70 The Article implies that state parties should recognize the right of everyone to
the enjoyment of the highest attainable standard of physical and mental health. Thus any
activity, which impairs the physical and mental health of any person should be
prevented. This Article is very important from the women’s point of view, as we know
the health of women is neglected in most of the occasion in our society. Thus to reduce

70
Article 12 ,ICESCR

27
child mortality rate and to improve the health of the mother and child state should make
law.

3.2. International covenant on civil and political rights - The Covenant has
a Preamble and six parts. Parts I to III (Articles 1 to 27) deal with the substantive rights
as well as provisions relating to the prohibition of discrimination, gender equality etc.
The covenant has two protocols .The first Optional Protocol contains 14 articles relating
to the individual complaints procedure and the Second Optional Protocol has 11 articles
which deals with an amendment of the right to life guaranteed under the covenant.71

However, the covenant states that each State Party to the present Covenant
undertakes to respect and to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the present Covenant, without distinction of any
kind, such as race, colour sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.72 Thus it imposes an obligation on the state
parties to ensure to all individuals the rights recognized in the Covenant without any
discrimination. At the same time, it also states that Where not already provided for by
existing legislative or other measures, each State Party to the present Covenant
undertakes to take the necessary steps, in accordance with its constitutional processes
and with the provisions of the present Covenant, to adopt such legislative or other
measures as may be necessary to give effect to the rights recognized in the present
Covenant.73 It takes assurance from the state parties to make all the necessary
arrangements to give effect to the rights recognized in the present Covenant in
accordance with their domestic laws.

To ensure the equal right of men and women to the enjoyment of all civil and
political rights set forth in the present Covenant in their national countries, the state
parties has given undertaken to the covenant.74 It implies that all human beings should
equally enjoy the rights provided in the Covenant. Consequently, States parties are
responsible for ensuring the equal enjoyment of rights without any discrimination. Thus,

71
Article 6, ICCPR.
72
Article 2(1) ICCPR.
73
Article 2(2) ICCPR.
74
Article 3 ICCPR.

28
both the Articles mandate States parties to take all necessary steps to prohibit
discrimination on the ground of sex and to make the atmosphere congenial for the full
enjoyment of women’s right.

The covenant says that all persons shall be equal before the courts and tribunals.
In the determination of any criminal charge against him, or of his rights and obligations
in a suit at law, everyone shall be entitled to a fair and public hearing by a compact,
independent and impartial tribunal established by law. The Press and the public may be
excluded from all or part of a trial for reasons of morals, public order or national security
in a democratic society, or when the interest of the private lives of the parties so requires,
or to the extent strictly necessary in the opinion of the court in special circumstances
where publicity would prejudice the interests of justice; but any judgment rendered in a
criminal case or in a suit at law shall be made public except where the interest of juvenile
persons otherwise requires or the proceedings concern matrimonial disputes or the
guardianship of children.75 This Article implies that States parties should provide to all
equal access to justice and the right to a fair trial and be enjoyed by women on equal
terms with men.

The covenant recognizes the right of everyone to recognition everywhere as a

76
person before the law. It implies that the right of everyone as a person before the law
should be recognized. This Article is very pertinent from women’s point of view, as we
often see that rights of women are curtailed in many occasions in the name of protection.
It also implies that States parties should prohibit such laws or practices that prevent
women from being treated or from functioning as legal persons and should take all the
necessary measures to eradicate such treatment.

It also states that everyone shall have the right to freedom of thought, conscience
and religion. The States Parties to the present Covenant undertake to have respect for the
liberty of parents and, when applicable, legal guardians to ensure the religious and moral
education of their children in conformity with their own convictions.77 It implies that
States parties should take necessary measures to ensure freedom of thought, conscience

75
Article 14 ICCPR.
76
Article 16 ICCPR.
77
Article 18 ICCPR.

29
and religion. It includes the freedom to adopt or to change the religion or belief of one’s
choice.

The covenant also concentrates on the importance of family. The right of men
and women of marriageable age to marry and to found a family shall be recognized. No
marriage shall be entered into without the free and full consent of the intending spouses.
States Parties to the present Covenant shall take appropriate steps to ensure equality of
rights and responsibilities of spouses as to marriage during marriage and at its
dissolution. In the case of dissolution, provision shall be made for the necessary
protection of any children.‘Equality during marriage’ implies that husband and wife
should participate equally in responsibility and authority within the family and ‘equality
in regard to the dissolution of marriage’ implies that the rules relating to the dissolution
of marriage should be the same for men and women.78

It gives emphasis on child right also and says that every child shall have without
any discrimination as to race, colour, sex, language, religion, national or social origin,
property or birth, the right to such measures of protection as are required by his status as
a minor, on the part of his family, society and the State. Every child shall be registered
immediately after birth and shall have a name. Every child has the right to acquire
nationality. 79This Article implies that States parties are under a duty to protect children
according to his or her status as a minor, on the part of his family, society and the State
without any discrimination. States parties should take all the possible measures to ensure
that girls and boys are treated equally in every sphere of life and to eradicate all such
practices which work as a block for a child’s all round development and progress.

The covenant ensures the right to equality and states that all persons are equal
before the law and are entitled without any discrimination to the equal protection of the
law. In this respect, the law shall prohibit any discrimination and guarantee to all persons
equal and effective protection against discrimination on any ground such as race, colour,
sex, language, religion, political or other opinion, national or social origin, property,

78
Article 23 ICCPR.
79
Article 24 ICCPR.

30
birth or other status.80 Thus it protects the right to equality before the law and equal
protection of law without any discrimination.

The individual complaints procedure of the first optional protocol was very much
controversial during the drafting of the Covenant and to solve the dispute, it was decided
to refer it to a separate Optional Protocol. It is regarded as the most effective human
rights complaints system at the universal level .By the April 2006, 105 of the 156 States
Parties to the Covenant were Parties to the First Optional Protocol and thereby submit
themselves to the jurisdiction of the Human Rights Committee in cases of violation of
human rights of an individual.81

An individual can sent a complaint to the Human Rights Committee regarding the
alleged violation of his or her right and if he is unable to submit, the Committee may
consider a communication from another person who must prove that he or she is acting
on behalf of the alleged victim. If the problem is already discussed or investigated under
the system of another international instrument, and all domestic remedies have already
been exhausted, it can be taken up by the Committee. After the admission of the
complaint, the Committee calls on the State parties and ask to explain or clarify the
problem and suggest something to settle the problem. A six months time is given to the
State party for reply. On the basis of the reply of the state parties, the Committee
expresses its final views and sends them to the State concerned and to the victim. Several
countries have changed their laws in accordance with the decisions of the Committee on
individual complaints under the Optional Protocol. In a number of cases, prisoners have
been released and compensation paid to victims of human rights violations. In 1990, the
Committee instituted another mechanism to assist it to deal with the problem more
stringently.82

The covenant is surprisingly a modern document. It includes all the contemporary

civil and political rights except the rights to property and asylum. More than two-thirds
of the present 191 Member States of the United Nations are already Parties to the
Covenant which proves that, the Covenant provides an excellent framework for the

80
Article 26, ICCPR.
81
See Supra note 39, at p.21
82
www2.ohchr.org/english/law/ccpr-death.htm Last visited 19th December 2011.

31
universal application of the human rights. Though, the monitoring system of the
Covenant and its First Optional Protocol is not very effective, but, the Human Rights
Committee created an independent and active membership system, the reporting and
individual complaints procedures which are very effective. However, the Committee fails
to enforce or induce state parties to submit their reports on time, to cooperate with the
committee and to comply with its decision. The decision of the HRC is not legally
binding. The inter-State complaints procedure is also not very competent for effective
action. However, ICCPR and its Optional Protocol have made a significant contribution
to the development of universal human rights. Now it depends upon the governments of
the state parties to comply with the decisions and recommendations of the proper
authority and adopt appropriate measures for the proper implementation of their
obligations under the Covenant in their domestic laws.83

4. Commission on the status of women - The UN’s work relating to the

status of women, designed to achieve equal rights for men and women. To promote and
to encourage respect for human rights and fundamental freedoms, the UN established the
Commission on the Status of Women, a functional commission of the Economic and
Social Council, established in 1946.The function of the commission are (1) to prepare
recommendation and report to the ECOSOC on promotion of women’s rights in political,
economic, civil, social and educational field and regarding any problem which requires
attention in the matter of women’s rights.84

5. Convention Concerning the Employment of Women on

Underground Work in Mines of All Kinds - Another important
convention adopted by the International Labour Organization is the Convention
Concerning the Employment of Women on Underground Work in Mines of All Kinds.
Originally drafted in 1935 and revised in 1946. Article 2 of the Convention says “No
female, whatever her age, shall be employed on underground work in any mine.” It is a
protective convention. This implies that the international community was very much
careful about the need to protect the woman’s health for her role as wife and mother. At

83
See Supra note 45, at p.22
84
www.nationsencyclopedia.com/.../The-Economic-and-Social-Council-SUBSIDIARY-ORGANS, Last
visited on 25 February, 2012

32
the same time it was also conscious regarding the notion of her physical incapacity for
that purpose they wanted to exclude the women in the name of protection.

6. Convention Concerning Night Work of Women Employed

in Industry 1948 - The original Convention Concerning Night Work of Women
Employed in Industry was drafted in 1919 by the ILO and was revised and modified in
1934 and 1948. The convention of 1948 gives a broad definition of ‘night’ as ‘the hours
between 10:00 PM and 7:00 AM’. Article 3 states “Women without distinction of age
shall not be employed during the night in any public or private industrial undertaking, or
in any branch thereof, other than an undertaking in which only members of the same
family are employed”.

It is also a protective convention. The intention of the world community is to

protect women from working at a time viewed as an undesirable by the society. The
reasons for such exclusion of women might be based on the notion of protecting the
health and security of women and of course for the welfare of the family. However,
Article 5 of the 1948 Convention reads the prohibition of night work for women may be
suspended by the government, after consultation with the employers’ and worker’s
organizations concerned, when in case of serious emergency the national interest
demands it. Such suspension shall be notified by the government concerned to the
Director-General of the International Labour Office in its annual report on the
application of the Convention.

7. The Convention for the Suppression of the Traffic in

persons and of the Exploitation of the Prostitution of others
1949 - I have already discussed that the earliest international effort with regard to
control prostitution was evident in the convention of 1904, 1910, 1921 and 1933. The
world community has attempted to regulate prostitution at an international level through
prohibitions on the transporting of women and children for immoral purpose.

The Suppression of Traffic Convention 1949 revised the earlier conventions

relating to the white slave trade and traffic in women and children and declares expressly

33
that such activity should be treated as an offence by the state parties. Article 1 states that
the State Parties to the convention agree to punish any person who “procures, entices or
leads away, anyone for the purposes of prostitution, even with the consent of that
person.” Thus the convention makes it an offence to procure, entice, or lead away
another person for the purpose of prostitution, even with the consent of that person.

At the same time it is also important to mention that Article 1 declares the
importance of the consent of the victims as irrelevant. Article 2 states that the State
Parties to the convention agree to punish any person who “keeps or manages, or
knowingly finances or takes part in the financing of a brothel” or “knowingly lets or
rents a building or other place or any part thereof for the purpose of the prostitution of
others.” The States parties are, therefore, obliged to punish both voluntary and
involuntary procurement into prostitution.

This approach reflects the general intention of the convention as stated in its
Preamble to establish prostitution as a practice that is “incompatible with the dignity and
worth of the human person. Article 6 states that each state Party to the present
Convention agrees to take all the necessary measures to repeal or abolish any existing
law, regulation or administrative provision by virtue of which persons who engage in or
are suspected of engaging in prostitution are subject either to special registration or to the
possession of a special document or to any exceptional requirements for supervision or
notification. Article 17 of the convention states that the Parties to the present Convention
undertake, in connection with immigration and emigration, to adopt or maintain such
measures as are required, in terms of their obligations under the present Convention, to
check the traffic in persons of either sex for the purpose of prostitution.

Thus the Convention also places an obligation on States parties to take specific
measures to protect immigrants and emigrants and in particular, women and children, the
potential victims of trafficking, by providing them with relevant information to ensure
that they do not fall victim to traffickers.

8. Convention concerning equal remuneration for men and

women workers for work of equal value 1951 - The Convention

34
Concerning Equal Remuneration for Men and Women Workers for Work of Equal
Value, 1951 is an important convention from the women’s point of view. In those days
women were not getting equal pay for equal work with men. It was a corrective,
protective as well as non-discriminatory effort on the part of the international
community. The convention aims to recognize the fact that women should get equal pay
for equal work. Article 1(b) states for the purpose of this convention the term “equal
remuneration for men and women workers for work of equal value” refers to rates of
remuneration established without discrimination based on sex. The convention also
states that each state party should implement the provisions of this convention to ensure
the principle of equal remuneration for men and women workers for work of equal
value85.

The convention is purely a non-discriminatory document. It does not give any

preference to women, nor does it allow any kind of extra payment to women as a
compensation for earlier injustice. The main object of the convention is to remove prior
inequalities relating to equal payment to all for equal work and to implement sex-neutral
legislation in all countries. The convention allows differentials treatment only in
different circumstances.

9. 1953 Convention on the Political Rights of Women - The 1953

Convention on the Political Rights of Women is another important document relating to
women’s right. It was an attempt to correct the fact that during that period in most of the
countries, women were not enjoyed any political rights like right to vote, right to hold
public office etc. The convention aims to recognize the principle of equality for all in the
public employment and in the election. This convention is corrective as well as non-
discrimination in nature. Article 1 of the convention states women shall be entitled to
vote in all election on equal terms with men and there should not be any discrimination
on any ground. It recognizes the political rights of women “on equal terms with men.”
Article 2 ensures that women shall be eligible for election to all elected institution.
Article 3 recognizes the women’s right to hold public office, to perform public function
on equal terms with men.

85
Article 3, CERWEV 1951

35
10. Supplementary Convention on the Abolition of Slavery, the
Slave Trade and Institutions and Practices Similar to Slavery
of 1956 - The Supplementary Convention on the Abolition of Slavery, the Slave Trade
and Institutions and Practices Similar to Slavery of 1956 is wider than the 1926 and 1933
Conventions. It imposes an obligation on the States parties to abolish the slavery, slave
trade and any other institutions and practices similar to slavery. The convention also said
that such institutions and practices should be declared as illegal by the States Parties and
they should take all the possible measures to abolish such practices in their countries.
The convention again defines slavery and includes debt bondage serfdom, and exploited
child labor etc. With regard to women, Article 1(c) of the Convention prohibits any
institution or practices whereby: (i) A woman, without the right to refuse, is promised or
given in marriage on payment of a consideration in money or in kind to her parents,
guardian, family or any person or group; or (ii) The husband of a woman, his family, or
his clan has the right to transfer her to another person for value received or otherwise; or
(iii) A woman on the death of her husband is liable to be inherited by another person; (d)
Any institution or practice whereby a child or young person under the age of 18 years is
delivered by either or both of his natural parents or by his guardian to another person,
whether for reward or not, with a view to the exploitation of the child or young person or
of his labour. Article 3of the Supplementary Convention makes it a criminal offence to
be involved in the slave trade. Article 6(1) of the Convention identified some methods of
procuring or enticing a person into slavery or servile status for the purposes of
prostitution or other forms of exploitation. The primary methods include (i) abduction,
(ii) purchase, or (iii) procurement with fraudulent inducements of jobs and a better life.

The practices like ‘serfdom’ though covered by the Slavery Convention, the
Supplementary Convention again includes it. As a reason of such inclusion, in the words
of Jessica Bell,86 Convention clarified that States parties should seek “the complete
abolition or abandonment” of the various institutions and practices that were identified
“where they still exist and whether or not they are covered by the definition of slavery
contained in article 1 of the Slavery Convention”. The definition of slavery given in the
Convention of 1926 and the Supplementary Convention of 1956 are remained unchanged

86
Jessica Bell, “TOPICAL RESEARCH DIGEST: HUMAN RIGHTS AND CONTEMPORARY SLAVERY”. Source-
www.du.edu/korbel/hrhw/researchdigest/slavery/law. Last visited on October 7th 2012

36
despite the repeated demands for the redefinition of the word slavery in the present day
world. The United Nations has made various restatements of the definition, but in the
international legal context it has not been altered substantially since 1926.

The League of Nations and there after United Nations Working Group on Slavery
is expanding its definition, identifying its factors of slavery and creating a broader
distinction of what comprises contemporary slavery. Besides this, there have been
numerous campaigns, intergovernmental organizations, and non-profit organizations,
which are also involved in the work like researching, monitoring of the existence of
contemporary slavery. Various kinds of laws in the national and international field have
been proposed and created, but, it lacks effective enforcement. However, an international
governing body, with the requisite political power over sovereign states is required to
enforce the international laws in the domestic laws.87

11. The Abolition of Forced Labour Convention, 1957 - The ILO

created the Abolition of Forced Labour Convention in 1957 (C.N.-105) as the provision
of the earlier convention were inconsistent with the many Articles of Universal
Declaration of Human Rights. The convention 1957 aims to eradicate forced labour
totally under certain circumstances. The preamble to Convention says that the
Supplementary Convention provides for the complete abolition of “debt bondage and
serfdom”. It also stated that ‘Forced labour’ affects the freedom of workers very much.
Article 1 imposes an obligation on the States parties to suppress the use of forced labour
for political purposes, for economic development, in the name discipline or punishment
of workers or for any other discriminatory act. However, ILO Convention No. 29 and
ILO Convention No. 105 collectively referred to as the “ILO forced labour conventions”
apply to work or service exacted by governments or public authorities as well as to
forced labour exacted by private bodies and individuals, including slavery, bonded
labour and certain forms of child labour.88 The ILO forced labour conventions are the
only international instruments that gives a broad definition of forced labour. 89

87
Ibid.
88
Report of the ILO Governing Body, ILO document GB 265/2 (1996), para. 32.
89
www2.ohchr.org/english/law/abolition; Last visited-20th Jan,2012

37
12. The 1957 Convention on the Nationality of Married
Women - Another important legislation in the international level concerning the
nationality of married women is the 1957 Convention on the Nationality of Married
Women. The preamble of the convention says that state parties should recognize the
provision of the Universal Declaration of Human Rights regarding the nationality of
married women, which says “everyone has the right to a nationality” and “no one shall
be arbitrarily deprived of his nationality nor denied the right to change his nationality.”90
The preamble also identifies that women faces many problems concerning the loss or
acquisition nationality due to marriage, separation or divorce. Article 1 of the treaty
provides that a woman’s nationality shall not automatically be affected by a marriage or
its dissolution and that any change in the nationality of a man shall not automatically
affect that of his wife. Article 2 states that each State party agrees that neither the
voluntary acquisition of the nationality of another State nor the renunciation of its
nationality by one of its nationals shall prevent the retention of its nationality by the wife
of such national This Convention is a corrective convention. It is no doubt a sincere
attempt on the part of the international authority to correct such provision which caused
great injustice to women.

13. 1958 Convention Concerning Discrimination in Respect of

Employment and Occupation - A remarkable step in the field of women’s
right is the drafting of the convention Concerning Discrimination in Respect of
Employment and Occupation in 1958. The document is protective as well as non-
discriminatory. The convention is an attempt to eliminate various forms of
discrimination adopted by the ILO in its prior convention. The preamble of the
convention states that all human beings have the right to pursue both their material well-
being and their spiritual development in condition of freedom and dignity of economic
security and equal opportunity without any discrimination. Article 1 provides for the
access to vocational education in the general definition of employment and education and
in the provision that requires national governments to eliminate discrimination as part of
the overall programme established by the Convention.

90
Article 15, U.D.H.R.

38
 Article 5 paragraph 1 states that special measures of protection or assistance
provided for in other Conventions or Recommendations adopted by the International
Labour Conference shall not be deemed to be discrimination and paragraph 2 states that
any Member may . . . determine that other special measures designed to meet the
particular requirements of persons who, for reasons such as sex, age, disablement, family
responsibilities or social or cultural status, are generally recognized to require special
protection or assistance, shall not be deemed to be discrimination.

In accordance with Dr. Haveaner,91 this Convention is internally contradictory as

it prohibited discrimination on the basis of sex in one side and on the other side allowed
discrimination when it is necessary. The researcher feels that the convention sought to
implement the principle of equality only among the equals.

14. 1960 Convention Against Discrimination in Education - The

1960 Convention Against Discrimination in Education is the first international
instrument in the field of the right to education. It is the most important right for the full
development of the human personality. The aim of the convention is to ensure “Full and
equal opportunities in education for all”. It lays down that the right to education should
be an international obligation of the state parties and should strive for the promotion and
development of the right to education for all without any discrimination. Article 1
defines the term “discrimination” to include any distinction, exclusion, limitation or
preference which, being based on race, colour, sex, language, religion, political or other
opinion, national or social origin, economic condition or birth, has the purpose or effect
of nullifying or impairing equality of treatment in education . . .”92

The objective of this document is clearly non-discriminatory. However, it lacks

provisions to correct past as well as existing discriminatory practices. This can be
evident in Article 2 which states that member state should establish or maintain separate
educational systems or institutions for girls and boys.93

91
See supra note 12 at p.12
92
http://www. unesdoc.unesco.org/images /0014/001412/141286e; visited-13 March, 2012
93
See supra note 12 at p.12

39
15. 1962 Convention on the Consent to Marriage - Another
international treaty in connection with women’s right is the Convention on Consent to
Marriage, Minimum Age for Marriage and Registration of Marriages 1962 .Thus the
convention implies that the provisions of the convention discusses not only about the
consent of marriage, but also about the minimum Age for marriage and registration of
marriage. The preamble expresses the intention of the convention to abolish “such
customs, ancient laws and practices by ensuring, inter alia, complete freedom in the
choice of a spouse, eliminating completely child marriages . . . .” So, the convention
wishes to cover all customs and laws which might also have adversely affected men and
women. Article 1(1) states that no marriage shall be legally entered into without the full
and free consent of both parties, such consent to be expressed by them in person after
due publicity and in the presence of the authority competent to solemnize the marriage
and of witnesses, as prescribed by law and Article 2 provides that States parties ... shall
take legislative action to specify a minimum age for marriage. No marriage shall be
legally entered into by any person under this age, except where a competent authority has
granted a dispensation as to age, for serious reasons, in the interest of the intending
spouses. The Convention thus imposes obligation on the state parties to fix a minimum
age for marriage and to take all the necessary measures to prevent such marriages. It also
covers those customs and laws which might also have adversely affected men.

This document is corrective as well as non-discriminatory. However, it fails to fix

the minimum age for marriage; the required age of marriage for boys and girls.

16. Declaration on the Elimination of Discrimination Against

Women 1967 - The Declaration on the Elimination of Discrimination against
Women was adopted by the General Assembly in 1967. The preamble to the Declaration
states that the discrimination against Women has continued to exist even after the
existence of many progressive provisions in the Charter of the United Nations, the
Universal Declaration of Human Rights, the International Covenant on Human Rights,
other instruments and the implementation of the same. Thus, it became necessary to
make this Declaration in order to attain equality of rights of men and women and the
elimination of discrimination based on sex. It restates some old principles already

40
incorporated in various earlier instruments and also include some new principles which
did not find mention in the earlier instruments.

The Declaration states that any discrimination against women denying or limiting
their equality of right with men is fundamentally unjust and constitutes an offence
against human dignity. The existing laws, customs, regulations and practices which are
discriminatory against women should be abolished. The adequate legal protection for
equal rights of men and women must be provided. The international instruments of the
United Nations and specialized agencies relating to the elimination of discrimination
against women, and their full implementation must be ratified or accede to, as soon as
possible. It also states that there is need to educate public opinion and to direct national
aspirations towards the eradication of prejudice and the abolition of customary and all
other practices which are based on the ideal of the inferiority of women. The declaration
imposes obligation on the national and international authorities to take all appropriate
measures to ensure to women, on equal terms with men and without any discrimination,
the right to vote in all elections, to hold public office and exercise all public functions, to
acquire change or retain their nationality, to enjoy civil law, to education at all levels, to
economic and social life, to combat all forms of traffic in women and exploitation of
prostitution of women etc.

To implement the provisions of the Declaration, the Economic and Social

Council has initiated a reporting system on the basis of the recommendation of the
Commission on the Status of Women to send a report to the Secretary-General of the
Economic and Social Council regarding the actions taken by all the member states, the
specialized agencies and the non-governmental organizations for the implementation of
those principles. The Secretary-General is required to send his report on the information
so received to the Commission on the Status of Women for its consideration.

17. Declaration of Mexico, 1975 - Equal rights of men and women is the
object of this declaration. Article 1 of the declaration states that equality between women
and men means equality in their dignity and worth as human beings as well as equality in
their rights, opportunities and responsibilities. It restates the rights specified in the
human rights covenants in a non-discriminatory form.

41
 The Declaration of Mexico gives emphasis on the equal rights of women with
men to integrate them into the development of their countries and fostering a true
equality of status. Article 8 of the declaration states all means of communication and
information as well as all cultural media should regard as a high priority their
responsibility for helping to remove the attitudinal and cultural factors that still inhibit
the development of women and for projecting in positive terms the value to society of the
assumption by women of changing and expanding roles. Thus it seeks to remove all the
hindrances which prevent the development of women. Article 9 states that necessary
resources should be made available in order that women may be able to participate in the
political life of their countries and of the international community since their active
participation in national and world affairs at decision-making and other levels in the
political field is a prerequisite of women’s full exercise of equal rights as well as of their
further development, and of the national well-being. Articles 17, 20 and 21, also
highlight the necessity of equal rights of women in national development. Thus women’s
participation in the development of the country is the primary consideration of the
declaration and for that purpose state parties should introduce some changes in the
national legislation to promote the participation and advancement of women in all fields
of work like equal educational opportunity.

To develop the self-reliance of rural women, the Governments, the United

Nations, its specialized agencies and other competent regional and international
organizations should support projects designed to utilize the maximum potential. Article
28 reads that women all over the world should unite to eliminate violations of human
rights committed against women and girls such as rape, prostitution, physical assault,
mental cruelty, child marriage, forced marriage and marriage as a commercial
transaction.

The conference has enabled women to develop skills and to mobilize the
resources necessary to influence mainstream policy debates at the national and
international levels. The Decade for Women (1976-1985) was a direct outcome of the
conference held in Mexico city in order to combine the concerns of numerous NGOs
with that of the UN. The year was a period of fact finding and planning, and mostly a
period for action.

42
 We have seen that the main object of United Nations organization is to ensure
rights, justice and equality to all. In the matter of women’s problem it has congregated
many laws for the promotion and protection women’s rights. United Nations has set
“common minimum standards” to be adopted by member countries for eradicating
gender discrimination. The United Nations organization affirms that the improvement of
the condition and status of women is one of its primary responsibilities. Thus, the effort
of United Nations Organization is no doubt praise worthy in the matter of women’s
movement.

During 1945-1962, the UNO tried to ensure women’s legal equality and
participation in the political life. In 1946, Commission on human rights and commission
on the status of women were established thereby accelerating the growth of the
codification of the legal rights of women. In 1948 it adopted universal declaration of
human rights, which also works for the promotion of the equal rights of women. During
1963-1975, the government had responded to the United Nations and enacted laws and
start different programmes to protect human rights at the national level. It also adopted
the declaration on Elimination of Discrimination against Women in 1967 which acted as
a means of elimination of discrimination and also the codification of rights to economic
and social realities of women. It also emphasized the fact that violence against
constitutes discrimination against women and is a violation of the rights of women. The
declaration of the International Women Years in 1975 is another important incident in
the women’s rights history.94 Designating special days and convening special review
sessions is to ensure that member States commit to the protection of women’s rights and
also to advance global awareness and activism on the issues.

The organizing power of the United Nations has been applied both to promote
and sensitize the world regarding the continuing gender inequality, violation of women’s
rights and violence against women and girls. The Commission on the Status of Women,
the Economic and Social Council and the General Assembly, always include the issues
of gender equality and women’s empowerment in their agenda. But unfortunately,
Member States are not too much conscious regarding the urgency for the proper action
and for proper implementation. The development and implementation of national

94
G8 INTERNATIONAL CONFERENCE ON VIOLENCE AGAINST WOMEN. Source-
www.un.org/womenwatch/.../G8%20conference%20on%20VAW.sep09; visited-15th April, 2012

43
legislation to address and punish all forms of violence and discrimination against women
and girls is therefore one of the important object of UNO. It is the transformation of
international assurance into national legal system and their implementation and
enforcement that can make the words into action.95

PART –III
Recent International Consensus

To understand the recent International consensus regarding the protection and

developments of women rights, this period is the most important. During this period, the
United Nations Decade for Women, the Convention on Elimination of All Forms of
Discrimination Against Women, 1979. World conferences in Copenhagen in 1980, in
Nairobi in 1985 and in Baizing in 1995 highlighted the success of Women rights
movements. All the international organizations, agencies and bodies have become very
conscious regarding women rights. The World Conference on Human Rights, 1993,
International Conference on Population and Development, 1994, World Summit for
Social Development, 1995, quicken the growth of women’s right movement.

Beside the Declaration on the Elimination of Discrimination against Women and

the Declaration of Mexico, some other non-conventional documents are also there on the
status of women, which are (1) The World Plan of Action and (2) The Programme of
Action. These documents do not have the binding force like a treaty, but these are very
important from the women’s right point of view.

1. The World Plan of Action - World Plan of action is a plan adopted in the
International women’s year to improve the condition of women through national
international action. It includes corrective as well as non-discriminatory provisions. The
Plan includes some suggestions, options and guidelines for national and international
action with the intention to integrate women in the national and international actions in
respect of women.

95
Ibid.

44
2. United Nations Decade for Women Equality, Development
and Peace 1976–1985 - The World Conference of the United Nations Decade for
Women Equality, Development and Peace was held at Copenhagen in 1980. The
Conference has two aspects. On the one hand, it reviewed and evaluated the actions
already done towards the fulfillment of the objectives of the Decade at all level from
1975 to 1980 and on the other hand formulated the programme of action for the second
half of the United Nations Decade for Women from 1980-1985.It gives more emphasis
on equality, development and peace in respect to employment, health and education. It
relies on the principle that for the all round development of women conditions relating to
employment, health and education should be improved as they play important part in the
process of development. It also states that constraints which hamper the women’s full
and equal participation in the development should be removed.

3. International Research and Training Institute for The

Advancement of Women - The World Conference of the International
Women’s Year recommended for the establishment of an International Training and
Research Institute for the Advancement of Women. This institute has been established as
an autonomous body under the auspices of the United Nations, and Funded by the
voluntary contributions. This Institute should work in close collaboration with all
relevant organizations within the United Nations system and national and regional
centres and Institutes which have similar objectives.

The Institute is also doing research work on the contribution of women to

development, and arranging some innovative training programme for women in
developing countries.

4. The Convention on the Elimination of All Forms of

Discrimination Against Women - The International ‘Convention on the
Elimination of All Forms of Discrimination Against Women’ is one of the six basic
international human rights instruments, focusing exclusively on elimination of
discrimination against women and become an important legal instrument for the
protection of the equal rights of women within the framework of the United Nations. It is

45
also called ‘the International Bill of Rights for Women’. Though, several other human
rights instruments prohibit sex discrimination but, the primary aim of this Convention is
to prevent and eliminate all forms of discrimination against women. It highlights the
applicability of education in shaping the equal rights and responsibility for men and
women. The convention recommends the state parties to take all kinds of steps towards
accelerating equal right of men and women in the fields of political rights, health, labour
rights, marriage, ability to enter into contracts both in law and in practice. It concentrates
mainly on the adoption of three objectives like the achievement of complete equality for
women before the law; the improvement of the position of women; and efforts to
confront the dominant gender-based ideology and accordingly we should also interpret
the provision of the convention in the light of those objectives.

The Convention was preceded by the Declaration on the Elimination of

Discrimination against Women in 1967. The implementation of its provisions is
reviewed by the Committee on the Elimination of Discrimination against Women.
Article 1 states that the term ‘discrimination against women’ shall mean any distinction,
exclusion or restriction made on the basis of sex which has the effect or purpose of
impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of
their marital status, on a basis of equality of men and women, of human rights and
fundamental freedoms in the political, economic, social, cultural, civil or any other field.
As explained by the Committee, this definition includes “gender-based violence that is
directed against women because she is a women or that affects women
disproportionately.

Article 2 of the Convention states that the States Parties have condemned
discrimination against women in all its forms and have agreed to pursue by all
appropriate means and without delay a policy of eliminating discrimination against
women. To this, end, they have agreed to undertake to incorporate the principle of
equality of men and women in their national constitutions or other appropriates
legislation by creating new laws or by modifying or abolishing existing laws,
regulations, customs and practice which constitute discrimination against women or by
ensuring through competent tribunals and other public institutions the effective
protection of women against any act of discrimination or by directing public authorities
and institutions to act in conformity with the obligation to take all appropriate measures,

46
including legislation to modify or abolish existing laws, regulations, customs and
practice which constitute discrimination against women.

Under Article 3, the State parties agree to work for the development and
advancement of women in order to afford them their rights “on a basis of equality with
men.”Article 4 reads that special measures taken by the state parties beside all those
measures contained in the present convention in connection with the protection of
maternity shall not be considered discriminatory.

The Article implies that special treatment to women is necessary during their
childbirth. So, special measure taken in favour of pregnant women and nursing mother
should not be considered as discriminatory. The convention also states that “such
measures shall be discontinued when the objectives of equality of opportunity and
treatment have been achieved”`96. The Convention on the Elimination of All Forms of
Discrimination against Women covers acts falling within the public as well as private
sphere. ‘Discrimination’ under the Convention is not restricted to action by or on behalf
of Governments. States may also be responsible for the violations of rights or to
investigate and punish acts of violence.

There are some other rights also which is to be protected by state parties of the
convention like to ensure education in respect of understanding of maternity, to
recognize the common responsibility of men and women in the upbringing and
development of their children, to understand that the interest of the children is the
primordial consideration in all cases, to suppress all forms of trafficking in women and
exploitation of prostitution of women , to eliminate discrimination against women in the
political and public life of the country and in education , employment, health care and
other areas of economic and social life , to ensure the rights of the Convention to women
in rural areas, to work to the same employment opportunities, to free choice of
profession and employment, to equal remuneration, to social security and to protection of
health and safety in working conditions ,to family benefits, to bank loans, mortgages and
other forms of financial credit and to participate in recreational facilities, sports and all
aspects of cultural life, to participate in the elaboration and implementation of

96
Art. 4 (1), CEDAW

47
development plans, to have access to adequate health care facilities, to benefit directly
from social security programmes, to obtain all types of training and education, to
organize self-help groups, to participate in all community activities, to have access to
agricultural credit and loans, and to enjoy adequate living conditions, to take all
appropriate measures to eliminate discrimination against women in all matters relating to
marriage and family relations etc.

The Convention on the Elimination of All Forms of Discrimination against

Women, deals with the multiple issue relating to women in a single document. For the
most part the treaty is non-discriminatory in its approach. The prohibition on the ground
of discrimination under the convention is prohibited. It emphasizes on the joint rights
and responsibilities of the family, parents and publicly funded medical care and health
services for the promotion of child care facilities and other related social services.

The most important work is the proper implementation of the rules and principles
set forth in the treaties. States should be encouraged to ratify the Convention on the
Elimination of All Forms of Discrimination Against women. Special attention should be
focused on the World Plan of Action and the Copenhagen Programme of Action. New
treaties are also required in the area of importance. Though several acts have already
been done at the national level by the regional and global intergovernmental and
nongovernmental groups, but, a continuous stimulating and supporting national action
will have to take by the national government for the proper implementation of the
provisions of this instrument.97

The Convention on the Elimination of All Forms of Discrimination against

Women is considered as the supreme international human rights instrument for the
elimination of discrimination against Women. As of September 2009, 186 States are
party to the Convention, which represents an increase of 41 States since the Fourth
World Conference on Women in 1995. The position of the Convention is the second on
the basis of the ratification of international human rights instruments. The Convention
established a committee on the Elimination of Discrimination against Women in 1982 to
monitor implementation of the provisions of the convention by States parties. According

97
See supra note 11 at p.12

48
to the report, it has dealt with about 400 reports submitted by the States parties, and
guided the State parties regarding the steps to be taken by them in future. The Committee
has made 26 general recommendations to highlight specific issues under the Convention.
The Optional Protocol to the Convention comprises both the individual complaints
procedure and an inquiry procedure. By September 2009, 96 States parties to the
Convention have become the signatory of the Optional Protocol. The Committee on the
Elimination of Discrimination against Women has decided five individual complaints on
the merits and declared five cases as inadmissible. The Committee has also conducted
one inquiry in which it issued comprehensive recommendations to the State party
concerned. The procedures followed by the Optional Protocol harmonize the reporting
system and make the existing mechanisms strong for ensuring the full enjoyment of
women’s rights. It provides opportunity to an individual to get remedy at the
international level and at the same time work as an important tool for materializing the
obligations imposed by the Convention.

India ratified CEDAW in 1993. Thus the courts in India are under an obligation
to give due regard to the international conventions and apply the same in the domestic
laws when there is no inconsistency.

5. World Conference of the United Nations Decade for Women

- Equality Development and Peace - It was adopted in the 1980 World Conference of
Copenhagen, to mark the midpoint in the United Nations Decade for Women. The
purpose of the Conference and the Programme was to review and evaluate the progress
which had been made towards the implementation of the World Plan and to formulate
future course of action for improving the status of women. The Programme recommends
for making comparative statistical surveys on working women.

The Programme emphasizes more on the role of mass media and requests the
governments and media directors to work to eliminate negative images of women in
news and advertising. In addition to this special campaigns should be made to eliminate
harmful prejudice and practices. Parents should also be made conscious regarding their
duties and responsibilities for the training and education of their children. It is no doubt a
non-discriminatory instrument and tries to eliminate past inequities and enable women to

49
get education, means, and access, which help them to achieve the goal of equality with
men in society.

6. The Convention Against Torture 1984 and its Optional

Protocol - The International Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment was adopted by the General Assembly in 1984. It
is considered as an important landmark in the prevention of the torture by the
international community. To strengthen its action for the prevention of torture and to
make its working in a well-organized way, it has been provided with an optional
protocol. Preamble states that its objective is “to make more effective the struggle
against torture and other cruel, inhuman or degrading treatment or punishment
throughout the world”. Article1 defines the term “torture” which includes any act or
conduct which intentionally inflicts on a person severe pain or suffering be this physical
or mental or the aim with which the pain or suffering is caused being not solely private
or the person causing the suffering, be this by action or omission, being a public agent, or
acting at the instigation of or with the consent or acquiescence of a public official or
other person acting in an official capacity. It imposes obligations on the States parties to
adopt measures to effectively prevent torture, to repress torture, and to guarantee
domestic remedies for appeal and reparation for the victims. State parties are also
entrusted with the tusk to take effective measures to prevent acts of torture in any
territory that falls under their jurisdiction,98 to prevent torture, in particular by not
expelling, returning, and extraditing a person to another State where there are
“substantial grounds” for believing that he or she would be in danger of being subjected
to torture99 and that no statement taken under torture can be used as evidence in any
proceedings100 and that a training programme should be introduced of law enforcement
personnel, civil or military, medical personnel, public officials, and any other people
who may be involved in the custody, interrogation or care of any person subject to any
form of arrest, detention, or imprisonment101 and that rules regarding interrogation,
instructions, methods and practices as well as arrangements regarding the custody and
treatment of any individual in case of arrest, detention, or imprisonment in any territory

98
Article 2, ICT, 1984
99
Article 3, ICT,1984
100
Article 15, ICT, 1984
101
Article 10 ,ICT , 1984

50
under their jurisdiction should be reviewed systematically102 and that all acts of torture,
or attempts to commit them, or acts of complicity or participation in torture should be
considered as offences and be made punishable by appropriate penalties under the
criminal law of the country103 and that the competent authorities should perform a
prompt and impartial investigation as long as there are reasonable grounds to believe that
an act of torture has been committed in any territory under their jurisdiction104or that a
victim of torture has the right to complain and to have his case promptly and impartially
examined by the competent authorities105 and a victim should obtain redress, adequate
compensation, and full rehabilitation as possible106 The Convention created the
Committee Against Torture as a body competent to organize the enforcement mechanism
of the States Parties.

7. The Optional Protocol to the Convention Against Torture -

An optional protocol is an additional part of an international treaty, which complements
the original treaty by its supplementary provisions. It is called optional because its
provisions are not automatically binding on the states, those state, which have already
ratified the original treaty are free to be a member of the protocol. The Optional Protocol
to the UN Convention against Torture was created as a human rights body with the aim
to prevent torture by regular visits to places of detention.107

The importance of the Optional Protocol to the UN Convention against Torture in

comparison with other existing human rights mechanisms are that it gives more emphasis
on the prevention of violation of any norm and is based on a principle of teamwork with
the States Parties to prevent violations. The Optional Protocol is based on the principle of
regular and periodic monitoring of places of detention conducted by expert bodies to
prevent exploitation., while the CAT can conduct visits to States Parties, it can only do
so if there is any well-substantiated information that torture is being steadily practiced
anywhere, with the prior consent of the State, CAT can conduct visits to the place of
torture. The Optional Protocol established a two tier system of prevention both at the

102
Article 11, ICT, 1984
103
Article 4, ICT, 1984
104
Article 12 ,ICT , 1984
105
Article 13 ,ICT , 1984
106
Article 14, ICT, 1984
107
www2.ohchr.org/english/bodies/cat/opcat/mechanisms.; Last visited om24 th November,2011

51
international and the national level. The international expert body is created within the
UN system and national bodies are to be established by States Parties under the domestic
law of the country. For the proper implementation of the provisions of the CAT, both the
mechanisms at international and national level under the protocol have to pay regular
visits to places of detention for the purpose of monitoring the situation, proposing
recommendations and working constructively with States Parties. After visit the
subcommittee will prepare and submit a report regarding the alleged violation of the
provision of the CAT with recommendations to the proper authorities. The report will
remain confidential unless the State Party concerned gives its consent for publication or
fails to cooperate with the Subcommittee. The Subcommittee will also play an important
advisory role for States Parties and national preventive mechanisms. State Parties are an
obligation to create and maintain a national preventive mechanism within one year either
after the coming into force or after the ratification of the Optional Protocol. The Optional
Protocol also sets out specific guarantees and safeguards for the effective and
independent functioning of these bodies and to ensure that they will be free from any
unjustified interference. The safeguard, provided by the protocol is happened for the first
time in international law.108

The prevention and eradication of torture and cruel, inhuman, or degrading

treatment or punishment is an objective of the OPCAT. However, the 1984 Convention
and its Optional Protocol are instruments of great importance from the women’s point of
view. Though, due to non cooperation of many states, potential of this protocol is not
fully realized, but, UN is trying to improve the functioning of the Committee against
Torture.109 It is very important to note that any kind of torture can be included within the
convention and signatory states are bound to prevent torture by making adequate laws at
national level.

8. World Conference to Review and Appraise the

Achievements of the United Nations Decade for Women -
Another World Conference to Review and Appraise the Achievements for the United
Nations Decade for Women : Equality, Development and Peace was held at Nairobi in

108
Ibid.
109
See Supra note 45, at p.22

52
1985. This Conference was held in pursuance of the General Assembly Resolution of 11
December 1980. The aim of the Conference is to consider two issues; one is a “Critical
review and appraisal of progress achieved and obstacles encountered in attaining the
goals and objectives of the United Nations Decade for Women : Equality, Development
and Peace with special emphasis upon employment, health and education in the light of
guidelines laid down at the World Conference of the International Women’s Year held at
Mexico City and the “World Conference of the United Nations Decade for Women :
Equality, Development and Peace” held at Copenhagen and other one is a “Forward-
looking strategies of the implementation for the advancement of women for the period up
to the Year 2000, and concrete measures to overcome obstacles to the achievement of the
goals and activities of the United Nations Decade for Women : Equality, Development
and Peace in the special context of Employment, Health and Education. It aims to
eliminate all forms of inequality between men and women and to promote integration of
women in the national life of their countries.

To meet the new challenges, the Commission on the Status of Women reviewed
its work and reaffirmed its role towards the development of women. Along with the
Commission on the Status of Women, the Center for Social Development and
Humanitarian Affairs of the Secretariat, the United Nations Development Fund for
women and International Training and Research Institute for the Advancement of
Women were also entrusted with important task in the implementation of the Nairobi
Forward-looking Strategies.

9. United Nations Development Fund for Women - The United

Nations Development Fund for Women (UNIFEM) established in 1985 is an
autonomous body working in association with UNDP. This Fund is contributed by
Governments, international organizations, national committees on the Fund and
individuals and governed by UNDP and the Fund jointly. The main tusk of the Fund is to
identify and study of emerging issues relating to women, more particularly, the issues
like violence against women, the assistance to refugee women etc.

53
 It helps women to highlights the issue of violence against women by participating
at appropriate international events. It has also established projects to provide assistance
to the refugee women.

10. Convention on the Rights of the Child 1989 - The Convention on

the Rights of the Child, 1989, creates a new dimension to human rights by adding rights
and interests of the children in international documents. Personality of a human being
develops since birth and continues to develop throughout the whole life. Severe forms of
child abuse, neglect and exploitation may cause serious brain damage.

Under the convention, child means every human being below the age of 18 years.
State parties to the present convention shall respect and ensure the rights set forth in this
convention to each child within their jurisdiction without any discrimination and also
recognize that the interest of the child shall be a primary consideration. States Parties
shall take all appropriate measures as is necessary for the well-being of the child and all
the institutions, services and practices responsible for the care and protection of children
shall conform to the standards established by the competent authority110. The “best
interests of the child” is a legal concept which focuses on the welfare and healthy holistic
development of the child, development of personality which includes participation in
family, school, community and society.111

The convention highlights on the responsibility of mass media to sponsor welfare

of the child. It reads that States Parties should recognize the important function
performed by the mass media and shall ensure that the child has access to information
and material from a diversity of national and international sources, especially those
aimed at the promotion of his or her social, spiritual and moral well-being and physical
and mental health.112 State parties should also take all appropriate measures to protect
the child from all forms of physical and mental violence, injury, abuse, neglect,
exploitation, torture or any other form of cruel, inhuman or degrading treatment or
punishment113. The convention concentrates more on the education of the child and

110
Article 2 and 3, CRC,1989
111
Article 40, CRC,1989
112
Article 17, CRC 1989
113
Article 19, CRC 1989

54
considers it as a right. It says that States Parties agree that the education of the child shall
be directed to the development of the child’s personality, talents and mental and physical
abilities to their fullest potential.114 It is also said that the principles and provisions of the
Convention should be applied to adults and children alike115. And for the violation of any
penal law a child should be treated in a manner consistent with the promotion of the
child’s sense of dignity and worth by taking into consideration of the child’s age and the
child’s future role in society.116 The convention also includes many important provisions
relating to child, like right to life and development117 health care, including prenatal care,
parenting education and preventive care118 material and parental support, especially with
regard to nutrition, clothing and housing119 parental assistance with regard to child-
rearing120 primary, secondary, vocational and higher education and vocational
information and guidance121 social security122 social reintegration of child victims of
abuse, neglect and exploitation 123

Protecting child’s right is critical as well as a very soft issue. A great insight is
required to probe into the matter. The human rights community would not get too much
success in implementing children’s rights, but constant research in the field has been
improved the law relating to child. However, it is our duty to nurture the child with love
and care.

11. World Conference on Human Rights at Vienna (1993) - It is

regarded as a milestone in the history of women’s right. It declares “human rights of
women and of the girl child are inalienable, integral and indivisible part of universal
human rights”. The conference highlights on the full and equal participation of women in
political, civil, economic and cultural life at the national, regional and international levels
and the eradication of all forms of discrimination on the ground of sex. The conference
requested Governments institutions, inter-governmental and non-governmental

114
Article 29, CRC1989
115
Article 42, CRC 1989
116
Article 40, CRC 1989
117
Article 6, CRC 1989
118
Article 24, CRC Child 1989
119
Article 27, CRC 1989
120
Article 18 ,CRC 1989
121
28, CRC 1989
122
26, CRC 1989
123
39, CRC1989

55
organizations to strive hard for the protection and promotion of human rights of women
and the girl child. The Declaration recognized the gender based violence against women
in public and private life as a human rights concern for the first time. It also highlights
the issues like sexual harassment and exploitation.

It also recognizes the right of women to enjoy the highest standard of physical
and mental health throughout their life span … and reaffirms, on the basis of equality
between woman and man, a woman’s right to adequate health care and the widest range
of family planning services, as well as equal access to education at all levels.

12. Declaration on the Elimination of Violence Against Women

1993 - It is the first international human rights instrument which exclusively deals with
the issue of violence against women. The world community again concentrates on the
issue of violence against women and requested the states to combat violence against
women in their national states by making legislation. General Assembly adopted the
Declaration by its resolution in 1993.

The Declaration draws the attention of the world towards the necessity for the
elimination of violence against women. The Declaration reads that Violence against
women means any act of gender based violence that results in or is likely to result in,
physical, sexual or psychological harm or suffering to women including threats of such
acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private
life.124It also states that violence against women includes all Physical, Sexual and
psychological violence occurring in the family, occurring within the general community
and violence perpetrated or condoned by the state wherever it occurs.125 The Declaration
also prepares an exhaustive list of rights to which women are entitled like right to life,
right to equality, right to liberty and security of persons, right to the highest standard
attainable of physical and mental health, right to just and favourable conditions of work
etc126. However it calls on the member states to exercise due diligence to prevent and
punish acts of violence against women, perpetrated either by the state or by private

124
Article 1, DEVAW 1993
125
Article 2, DEVAW1993
126
Article 3, DEDAW 1993

56
persons, to develop penal, civil, labour and administrative sanctions in domestic
legislation to punish and redress wrongs caused to women127 and they should also inform
women of their rights in seeking redress through such mechanism.

The shocking amount of violence against women throughout the whole world
were not unambiguously recognized by the international community until December
1993, before the adoption of the Declaration on the Elimination of Violence against
Women by the United Nations General Assembly.

Till then most of the states considered violence against women as a private matter
between individuals, and not as a insidious human rights crisis. However, to prevent the
alarming growth of violence against women throughout the world, the Commission on
Human Rights determined to appoint the special reporter on violence against women to
collect information on violence against women and its causes and consequences from
sources such as Governments, treaty bodies, specialized agencies and intergovernmental
and non-governmental organizations, and to respond effectively to such information and
to recommend measures and ways and means, at the national, regional and international
levels, to eliminate violence against women and its causes, and to remedy its
consequences.

Governments agreed to work closely with other special representatives, working

groups and independent experts of the Commission on Human Rights and to make
arrangements for the education, shelters, legal aid and other services for girls and women
at risk, and counseling and rehabilitation for perpetrators.128

13. Fourth World Conference on Women 1995 - The ‘Fourth World

Conference on Women’ was held in 1995 at Beijing, China, in pursuance of the General
Assembly Resolution of December 1989. The Conference was held to review and
appraise the implementation of the Nairobi Forward-looking Strategies for the
Advancement of Women to the Year 2000 and to adopt a Platform for Action
concentrating on some of the issues like discrimination against women, violence against

127
Article 4 ,DEDAW Women 1993
128
www.un.org/womenwatch/daw/beijing/pdf/BDPfA%20E.pdf; visited July 2012

57
women, identified as fundamental obstacle to the advancement of women. It identified
twelve areas of concern which were considered as stumbling block in the women’s
advancement like poverty, education, health, violence, armed and other conflicts,
economic participation, power sharing and decision making, national, international
machineries, human rights, mass media, environment, development and the girl child etc.

The conference stated that women have the right to the enjoyment of the highest
attainable standard of physical and mental health129and Women’s right to the enjoyment
of the highest standard of health must be secured throughout the whole life cycle in
equality with men.130It also stated that the human rights of women include their right to
have control over and decide freely and responsibility on matters related to their
sexuality, including, including sexual and reproductive health, free of coercion,
discrimination and violence.131 The conference recommends that national Govt. should
ensure that all health services and workers conform to human rights and to ethical,
professional and gender sensitive standard in the delivery. Women’s health services
aimed at ensuring responsible, voluntary and informed consent.132It declares rape as a
war crime.133

However, the objectives of the conference are134 (1) to review and appraise the
advancement of women since 1985, (2) to adopt a platform for action, (3) to identify the
important issues to be followed for the implementation of strategies within the U.N.
system, (4) to eliminate discrimination against women. However, the entire world
community has been realized that to make a plan for improving the status of women is
not enough without ensuring the right regarding safe birth of a girl child, her education
or other fundamental rights. The concept that women’s right is a human right
acknowledges that violation of women’s right in her home should be regarded as the
violation of the human right and state should take action against it. The conference states
that to improve women’s status and for the welfare of the world, maximum participation
of women in all fields on an equal term with men was required.

129
Para 89 FWCW 1995
130
Para92, FWCW 1995
131
Para 96 ,FWCW 1995
132
Para106, FWCW 1995
133
See supra note 10 at p.11
134
R.Revathi “ Law relating to Domestic Violence “ Hyderabad, Asia Law House,(2004)

58
 The Beijing Platform for Action sets out objectives on the critical area of
concern, where, national Governments have to take action. It includes ratification and
implementation of the provision of international human rights instruments, set up and
develop national action plans, legal education on human rights programmes, creation of
institutional mechanisms; strengthening legal framework for gender equality by
eliminating discriminatory laws and practices, establishment of mechanisms to prevent
violations of women’s rights and making arrangement for legal training programmes on
women’s human rights etc. The adoption of the Platform for Action is another event
which has been strengthened the international framework for the promotion and
protection of the human rights of women.

14. Optional Protocol to the Convention on the Elimination of

Discrimination Against Women, 1999 - UN General Assembly adopted
the Optional Protocol to CEDAW on 6 October 1999.The aim of Optional Protocol is to
toughen the enforcement procedure for the rights provided under CEDAW. Under the
Protocol complaints can be given directly to the UN. Although CEDAW signifies a
strong and precious report of women's human rights, it is not always enforced by
governments within their domestic legal systems. The rights exist, but they often fail to
be enforced.

This optional protocol can be signed and ratified by the CEDAW signatory states.
The Optional Protocol to CEDAW empowers women to bring a complaint to the
Committee of the CEDAW for the violation of the rights guaranteed under CEDAW. To
get remedy under CEDAW one has to seek remedy under the national law of that country
first and if she fails then she can claim remedy under the convention. The Optional
Protocol does not ensure new rights, but provides a new enforcement mechanism for the
rights provided under CEDAW.

Many state parties to CEDAW have applied mechanisms of the optional protocol
to implement the provision of CEDAW, for example, Australia's Sex Discrimination Act.
CEDAW highlights women's human rights with utmost importance, but, ensured rights
often fail to be enforced by governments within their domestic legal systems. The
Optional Protocol remains important for all nations for the following reasons- (1) The

59
Optional Protocol provides a support for domestic laws and policies to guarantee that
they are adequate and effective. (2) If there is any gap and women fails to get remedy
under domestic laws, the Optional Protocol ensures that an enforcement mechanism is
available to give remedy. (3) An Optional Protocol help to set uniform standards at all
levels of domestic laws in accordance with the provision of CEDAW. (4)The Optional
Protocol provides a mechanism for the ongoing protection of women's rights.135

India is a signatory to this Protocol, has legislated in the relevant field, as a result
in the year 2005 the Parliament has passed the enactment to be called the Protection of
Women from the Domestic Violence Act.

15. United Nations Millennium Declaration 2000 - The Government

of the many country met at the united nations head office in New York at the dawn of the
new millennium to pass United Nations Millennium Charter 2000.The signatory states
recognized that in addition to their separate responsibility, they have some collective
responsibility also to ensure the principle of equality and dignity to all especially the
most vulnerable section of the society i.e. women and children. It considered certain
fundamental values to be essential to international relations in the twenty-first century
like men and women have the right to live their lives and raise their children in dignity,
free from hunger and from the fear of violence, oppression or injustice. Democratic and
participatory governance based on the will of the people best assures these rights and no
individual and no nation must be denied the opportunity to benefit from development.
The equal rights and opportunities of women and men must be assured.

16. The World Summit Outcome Document 2005 - In the World

Summit Outcome document 2005, General Assembly highlights the role of women in the
prevention and resolution of conflicts and in peace building. It reaffirms their
commitment to the full and effective implementation of Security Council resolution 1325
(2000) of 31 October 2000 on women and peace and security. It stresses on the fact that
women should have the opportunity for equal participation and full involvement in all
efforts to maintain and promote peace and security, as well as the need to increase their
role in decision making at all levels.

135
www.un.org/womenwatch/daw/beijing/platform/violence

60
 General Assembly said that violations of the human rights of women and girls in
situations of armed conflict and the use of sexual exploitation, violence and abuse should
be condemned and it is the responsibility of UN to report , prevent and punish gender
based violence. It has also assured to support developing country to ensure that all
children have access to and complete free and compulsory primary education of good
quality, to eliminate gender inequality and imbalance and to renew efforts to improve
girl’s education. It has also supported fair globalization and resolve to make the goals of
full and productive employment and decent work for all, including for women and young
people. To achieve the Millennium Development Goals it has adopted some strategies
like eradication of poverty, elimination of the worst forms of child labour, forced labour
etc.136

17. Convention on the Rights of Persons with Disabilities 2006

- The purpose of the present Convention is to promote, protect and ensure the full and
equal enjoyment of all human rights and fundamental freedoms by all persons with
disabilities, and to promote respect for their inherent dignity137. States Parties recognize
that all persons are equal before the law and are entitled to the equal protection law. In
order to promote equality and eliminate discrimination, States Parties shall take all
appropriate steps and necessary measures to accelerate equality of persons with
disabilities138

In respect of women with disabilities, States Parties recognize that women and
girls with disabilities are subject to multiple discriminations and in this regard shall take
measures to ensure the full and equal enjoyment by them of all human rights and
fundamental freedoms. States Parties shall take all appropriate measures to ensure the
full development, advancement and empowerment of women, for the purpose of
guaranteeing them the exercise and enjoyment of the human rights and fundamental
freedoms set out in the present Convention.139

136
www.un.org/womenwatch/feature/ruralwomen/facts-figures;Last visited Sept 22, 2012
137
Article 1, CRPD 2006
138
Article 5, CRPD 2006
139
Article 6, CRPD 2006

61
 States Parties shall take all necessary measures to ensure the full enjoyment by
children with disabilities of all human rights and fundamental freedoms on an equal basis
with other children. In all actions concerning children with disabilities, the best interests
of the child shall be a primary consideration.140However, convention ensures various
rights relating to education141 health,142 rehabilitation,143 work and employment144 and
social protection145 for the person with disability. The optional protocol of the
convention was adopted with the intention to implement the provisions of the convention
properly.146

18. The United Nations Declaration on the Rights of

Indigenous People, 2007 - The Declaration on the Rights of Indigenous
Peoples 2007 lays emphasis on the need to consider the valuable contribution and rights
of indigenous women. This includes addressing the helpless condition of indigenous
women. Though many reforms have been made but historical difference against
indigenous peoples and against indigenous women based on their gender are still
continuing. It implies to fulfill the basic needs of indigenous communities, including
those of women, children and youth. According to international human rights standards,
indigenous peoples, like all human beings, are entitled to enjoy all human rights and
fundamental freedoms including civil, political, economic, social and cultural rights,
health and education. They have the right to equal treatment, health, education, and
economic development like other citizen of the State in which they live. These rights
apply to all men and women, children and adults alike. The main object of the
International Decade on the World’s Indigenous People is that States should make
special and positive measures to compensate for historic injustices and disadvantages,
including the double discrimination faced by indigenous women. Such Programmes
should work towards gender equality, indigenous women’s empowerment and the
protection of indigenous women’s human rights.

140
Article 7, CRPD 2006
141
Article 24, CRPD 2006
142
Article 25 ,CRPD 2006
143
Article 26 ,CRPD 2006
144
Article 27, CRPD 2006
145
Article 28 , CRPD 2006
146
www.un.org/disabilities/convention/optprotocol.Last visited on27th October 2011.

62
 A gender equality viewpoint centres to find out the causes and consequences of
gender prejudice between men and women should be established. Prevailing social
attitudes, customary practices, discriminatory laws and policies may be the causes among
other factors. These factors contribute to put in the picture what should be the best
programme strategies for working towards gender equality and to protect indigenous
women’s human rights.147

19. The Optional Protocol to the International Covenant on

Economic, Social and Cultural Rights, 2008 - The Optional Protocol
introduced an individual complaints mechanism for the implementation of the covenant.
State Parties agree to appreciate the competence of the Committee on Economic, Social
and Cultural Rights to consider complaints from individuals or groups who claim their
rights under the Covenant have been violated. Complainants must have exhausted all
domestic remedies, and anonymous complaints and complaints referring to events which
occurred before the country concerned joined the Optional Protocol are not permitted.
The Committee can request information from and make recommendations to a party.
Parties may also opt to permit the Committee to hear complaints from other parties,
rather than just individuals. The Protocol also includes an inquiry mechanism. Parties
may permit the Committee to investigate or report on and make recommendations on
serious or organized violations of the provision of the Convention.

Thus, we have seen that during this period UNO declared as The United Nations
Decade for Women. The United Nations declared that the women's equal rights is not an
isolated topic, rather it is important factor for the welfare of the society. The Convention
on Elimination of All Forms of Discrimination against Women, 1979 which is an
International Bill of Human Rights for Women shows the magnitude of the problem
globally. The decade also set up some plan of actions which promote equal rights of men
and women. World conferences in Copenhagen in 1980 and in Nairobi in 1985 had
marked the end of the Decade for Women and evaluate its success. Participant at Nairobi
conference adopted the Nairobi Forward-looking Strategies for the Advancement of
Women to the Year 2000, a design for achieving women's equality from 1986 to till date.
To materialize the rights of women become the main object of all the international

147
www2.ohchr.org/.../Add.1_EFSonly.pdf Last visited on 23 November 2011

63
organizations, agencies and bodies. The World Conference on Human Rights, 1993,
International Conference on Population and Development, 1994, World Summit for
Social Development, 1995, accelerate the protection of women’s right.148

PART- IV
Regional Development of women’s rights

The international framework for the promotion and protection of women’s rights
is reinforced by the developments at the regional level. Some of the important
instruments working for the developments of women’s human rights are as follows-

1.European mechanism :
1.1. The European Convention on Human Rights - Under the support of the
Council of Europe, the European Convention on Human Rights was adopted in 1950 and
entered into force in 1953. The convention is based on the outline of the International
Covenant on Civil and Political Rights and was concluded by the governments of
European countries "to take the first steps for the collective enforcement of certain of the
rights stated in the Universal Declaration of Human Rights." It was afterward enhanced
by five additional protocols. As far as the substantive provisions are concerned, the
European Convention and the International Covenant on Civil and Political Rights more
or less same. However, some important differences between the two instruments are that
the European Convention established two internal organs, the European Commission on
Human Rights and the European Court of Human Rights. Any party to the convention
has the right to refer to the commission for any alleged violation of the provisions of the
convention by another party. The commission may also receive petitions from any
person, nongovernmental organization, or group of individuals claiming to be the victim
of a violation. The exercise of this power by the commission is subject to the condition
that the state against which the complaint is directed has recognized this competence of
the commission.

148
Ibid.

64
 If the commission fails to succeed in securing a gracious settlement on the basis
of the convention, it will send a report on the facts with its opinion regarding the
violation of the obligation under the convention by the state concerned. The final
decision will be taken either by the Committee of Ministers of the Council of Europe or
by the European Court of Human Rights.149

1.2. The European Social Charter - The European Social Charter was adopted in
1961 and entered into force on 26 February 1965. The European Social Charter aims at
securing a number of social and economic rights, and it is therefore natural counterpart to
the European Convention on Human Rights which guarantees civil and political rights.
The provisions of the European Social Charter, however, are more specific and detailed.
It has established a reporting procedure. The reports are examined by a committee of
independent experts, which submits its conclusions to a governmental social
subcommittee. The Consultative Assembly of the Council of Europe is consulted. In the
final stage, the Committee of Ministers may make any recommendation that it considers
necessary to any contracting party in the areas of economic, social, and cultural rights.150

1.3. The European Social Charter (revised), 1996 - The European Social
Charter in its revised version was adopted in 1996 and entered into force on 1 July 1999.
The revised Social Charter progressively replaced the original Charter. It extended and
updated the terms of original charter. In accordance with new social and economic
developments, the revised Charter amended the existing provisions and adds new ones.
However, it has included a long list of rights and principles like the right to protection in
cases of termination of employment,151 the right to dignity at work,152the right of workers
with family responsibilities to equal opportunities and equal treatment153. It has also
included many provisions relating to the right of children and young persons, protection
of women and the equal opportunities of men and women and equal treatment in the
matters of employment and occupation.

149
www.ohchr.org/Documents/Publications/training9chapter3en.pdf Last visited 14th November 2011
150
Ibid.
151
Article 24, ESC
152
Article 26, ESC
153
Article 27, ESC

65
1.4. The European Convention for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment, 1987 - The European
Convention for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment was adopted in 1987 and entered into force on1 February 1989. The
provisions of the European Convention are closely similar to the UN Convention against
Torture adopted in 1984. It established a European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment, which has the power to
visit any place of detention within the jurisdiction of the Contracting States.

2. American mechanism:
2.1. The American Convention on Human Rights 1969 - In 1948, before the
adoption of the Universal Declaration of Human Rights by the General Assembly, the
Ninth International Conference of American States adopted the American Declaration of
the Rights and Duties of Man. This declaration was followed by the adoption of the
American Convention on Human Rights in 1969. It is also commonly called as the Pact
of San José, Costa Rica, as it was adopted in that capital city. This convention is a
comprehensive document like the European Convention on Human Rights and the
International Covenant on Civil and Political Rights. The Convention reinforced the
Inter-American Commission on Human Rights, which since 1960 had existed as “an
autonomous entity of the Organization of American States”. It became a treaty-based
organ which, together with the Inter-American Court of Human Rights, “shall have
competence with respect to matters relating to the fulfillment of the commitments made
by the States Parties” to the Convention154

The organs of implementation of the Pact of San José are the Inter-American
Commission on Human Rights and the Inter-American Court of Human Rights. While
the right of petition of individuals is optional under the European Convention and the
International Covenant on Civil and Political Rights, in the inter-American system, every
state party accepts the right of petition automatically.

154
Article 33, ACHR 1969

66
 In 1988, the General Assembly of the OAS further adopted the Additional
Protocol to the American Convention on Human Rights in the area of economic, social
and cultural Rights, also called the Protocol of San Salvador. This Protocol develops the
undertaking of the state parties to adopt measures, both at the national and international
level ... with a view to achieve progressively the realization of the full realization of the
rights implicit in the economic, social, educational, scientific, and cultural standards lay
down in the Charter.155

2.2. The Inter-American Convention on the Prevention, Punishment

and Eradication of Violence against Women 1995 - The American
Convention on Human Rights 1969, is also called “Convention of Belém do Pará”,was
adopted in 1994 by the General Assembly of the OAS and entered into force on 5 March
1995. This Convention is the only international treaty that exclusively aims to eliminate
gender-based violence. For the purposes of the Convention, “violence against women
shall be understood as any act or conduct, based on gender, which causes death or
physical, sexual or psychological harm or suffering to women, whether in the public or
the private sphere”156.As further specified, violence against women shall inter alia be
understood to include physical, sexual and psychological violence, irrespective of
whether that violence occurs within the family or domestic unit or within any other
interpersonal relationship, or in the community, or is perpetrated or condoned by the
157
State or its agents regardless of where it occurs. The scope of the application is thus
comprehensive and encompasses all spheres of society, be they public or private.

The Convention further emphasizes women’s right to enjoyment and protection

of all human rights contained in regional and international instruments, and the States
parties “recognize that violence against women prevents and nullifies” the exercise of
civil, political, economic, social and cultural rights.158 Lastly, the Convention provides
that the right of every woman to be free from violence includes, Human Rights in the

155
www.oas.org/en/iachr/women/docs/pdf. Last visited 30 oct,2011
156
Article 1, ACHR 1969
157
Article 2(a) to(c), ACHR 1969
158
Articles 4 and 5, ACHR 1969

67
Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and
violence.159

3. African mechanism:
3.1. The African Charter on Human and Peoples' Rights 1981 - In 1981,
the Assembly of Heads of State and Government of the Organization of African Unity,
meeting in Nairobi, Kenya, adopted the African Charter on Human and Peoples' Rights.
The charter, which came into force on 21 October 1986, provides for an African
Commission on Human and Peoples' Rights, composed of 11 members elected by the
assembly, to promote and protect the rights set forth in the charter. The provisions of the
charter are similar to those of the Universal Declaration of Human Rights but with
special reference to African traditions of rights and freedoms, including the right to self-
determination and the right of peoples to dispose of their wealth and natural resources.160

3.2. The African Charter on the Rights and Welfare of the Child, 1990 -
The African Charter on the Rights and Welfare of the Child was adopted in 1990, and
entered into force on 29 November 1999. As of 31 May 2000, it had 20 ratifications. The
Charter spells out a long list of rights of the child and establishes an African Committee
of Experts on the Rights and Welfare of the Child.

4. The Asia Pacific mechanism - The Asia-Pacific region is the only region,
where there is no specific human right treaty and human rights mechanism for the
promotion and protection of human rights. But, considerable amount of progress has
been made in the protection and promotion of human rights under the guidance of the
UN. However, some sub-regional human rights protection mechanisms have also been
created.

UN bodies have been initiated various programmes in all regions of the world
since the 1960s. The Asia-Pacific region is also not an exception of it. The UN General
Assembly and the Commission on Human Rights concentrated more on the Asia-Pacific
region from the mid 1980s onwards. However, the first seminar on the ‘National, Local

159
See Supra note 149 at p.65
160
www.nationsencyclopedia.com/.../regional human rights Last visited 22Jan,2012

68
and Regional Arrangements for the Promotion and Protection of Human Rights in the
Asian Region’ was held in Colombo, Sri Lanka, in 1982. From 1990s the UN tried to
create a regional human rights mechanism for the Asia-Pacific region, but failed. Later
on it tried to develop the notion of regional co-operation for the promotion and
protection of human rights. Thus, even after 22 years of efforts, OHCHR’s success rate is
very little.

Sub-regional organizations for the promotion and protection of human rights are
the South Asian Association for Regional Cooperation (SAARC), which adopted in
1996, for the protection of children and other vulnerable groups, the Pacific Island
Forum (PIF) and Association of Southeast Asian Nations (ASEAN).However, the most
important and progressive sub-regional organization of the Asia-Pacific region is the
Association of Southeast Asian Nations (ASEAN). It was originally set up by five
members i.e. Indonesia, Malaysia, the Philippines, Singapore and Thailand, in 1967 and
has now extended to 10 members.

However, it has taken many non-legally binding declarations with regard to

human rights, such as the Declaration on the Elimination of Violence against Women in
the ASEAN Region, the Declaration against Trafficking in Persons Particularly Women
and Children, and the ASEAN Declaration on the Protection and Promotion of the Rights
of Migrant Workers. The development of the rights regarding economic, social and
cultural, the notion of peace ,stability and justice and the principle of the rule of law, the
principles of the UN Charter, good governance, and respect and protection of human
rights and fundamental freedoms are its tusk. In the12th ASEAN Summit in Manila a
high-level task-force was set up to draft a Charter for ASEAN. The Charter was adopted
in November 2007 and finally ASEAN Intergovernmental Commission on Human
Rights (AICHR) launched on 23 October 2009.

The AICHR consists of one representative of each member state, i.e. 10

members, who are answerable to the appointing government and who are in place for
three years. Its main tusk is the creation of a human rights declaration, the development
of strategies for the promotion and protection of human rights, capacity building, and the
implementation of international human rights. It has to submit one report regarding its
activities to the ASEAN annually. While discharging its duties i.e. the protection and

69
promotion of human rights, it has to maintain the sovereignty of the member states and
on ‘non-interference in the internal affairs’ of states. The AICHR is an advice-giving
body. Its decisions are not binding. It lacks power to consider cases or investigative for
the violation of human rights. But it can criticize the state activity.

5. Legal development and its impact at Regional level - Some

initiative was also taken at the regional level by various authorities for the enhancement
of some rights for women in different field. In 1840, state legislatures in the United State
and the British Parliament began legislating to ensure property rights of women from
their husbands and husbands' creditors. These laws were known as the Married Women's
Property Laws. By 18th century, some women began to agitate for the right to vote, but,
gradually, the issue of women suffrage turned into the movement of universal suffrage.
During the 19th century the agitation for right to vote was expanded to many countries
and women started to campaign for their right to vote. During 1870s feminists
modernized the concept of voluntary motherhood which expressed the desire of women
to get the right to abortion.161 In the early 20th century birth control was advanced as
alternative to the then fashionable terms family limitation and voluntary motherhood.
However, in 1915 Women from the U.S. and Europe gather in Hague for the first
International Congress of Women, known as the Women’s International League for
Peace and Freedom. Women in Russia strike for “bread and peace” in 1918, which helps
to initiate the revolution that results in the overthrow of the imperial government. March
8th, the day the strike began, is later chosen to mark International Women’s Day. The
Indian National Congress supports giving women the right to vote. The 19th century in
the United States marked the raising of women’s demands for access to education, equal
rights in entering professions, equal right to vote etc.162 The Treaty of Versailles states
that women must receive equal pay as their male counterparts. 1922 The National
Council of Women is created in Chile to fight for women’s rights. By 1937 Cuba
demanded equal pay for equal work regardless of gender. In 1946 The United Nations
Commission on the Status of Women is formed.

161
http//en.wikipedia.org/wiki/Feminist_movement Last visited on29th March, 2012
162
Judith Hole and Ellen Levine ;”Rebirth of Feminism”, The New York, Times Book co, USA 1971,p,
1Source-Ibid.

70
 Israel passes the Women’s Equal Rights Act, making gender discrimination
illegal. Title VII of the Civil Rights Act1964 prohibits discrimination in employment on
the basis of race or sex. The Supreme Court ruling in the Griswold v. State of
Connecticut case 1965, states that laws prohibiting the use of birth control are
unconstitutional. The National Organization of Women 1966 is founded by the delegates
to the Third National Conference of the Commission on the Status of Women. In 1971
India launches its National Commission on the Status of Women. Helga Pederson
becomes the first female judge on the European Court of Human Rights. Title IX of the
Education Amendments 1972 bans sex discrimination in schools. The Roe v. Wade
decision by the Supreme Court rules that a woman has a constitutional right to abortion.
In 2000 The Millennium Development Goals (MDGs) are developed to improve the
conditions of the world’s poorest countries by year 2015. The goals are - 1. Eradicate
extreme poverty and hunger, 2. Achieve universal primary, 3. Promote gender equality,
4. Reduce child mortality, 5. Improve maternal mortality, 6. Combat HIV/AIDS, Malaria
and other diseases, 7. Ensure environmental sustainability, and 8. Create global
partnerships for development. In 2007 the first all-female UN Peacekeeping unit is
deployed. In 2011 UN Women is formed out of a number of existing UN organizations
for the empowerment of women and girls and to advocate for gender equality.163

The adoption of the various measures globally increased awareness about the
human rights of women at the national level. Many States have tried to materialize their
efforts to achieve the calculated objectives of the Platform for Action within a human
rights framework, especially CEDAW. To fulfill these objectives, many States have
made constitutional and legislative reforms with the aim to eradicate discrimination
against women, to improve the role of the court and judiciary towards women protection,
and to make a new action plan, new approach, and new mechanisms. States have
reported their efforts timely to the commission of the Convention on the Elimination of
All Forms of Discrimination against Women and to implement the concluding
observations of the Committee on the Elimination of Discrimination against Women.
Even in some cases Govt. and non Govt. organization are working conjointly for the
effective implementation of the provisions relating to women.

163
www.unfoundation.org/...women.../women-faith-and-development.html Last visited on 22March 2012

71
 PART- V
International Legal Instruments and Law relating to
Dowry deaths

India fails to implement the provisions of the international instruments regarding

violence against women and thereby come in conflict with international law. Several
human rights instruments deal with the issue of dowry deaths openly and
unconditionally. These instruments are Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights, the Convention of the Rights of the
Child, the Declaration on the Elimination of Violence against Women, and the
Convention on the Elimination of All Forms of Discrimination against Women etc.
These instruments do not specifically mention about dowry-related violence but only
assure the general right to protect women from violence. UDHR state that “no one shall
be subjected to torture”, and “everyone has the right to life.” The ICCPR provides all
people the “right to life,” regardless of gender. Other provisions relevant to dowry-
related violence, guaranteed by ICCPR are the right to be free from torture, the freedom
of movement, the right to equality within marriage, and the responsibility of state parties
to ensure the equal treatment of men and women. The CRC confirms the right to life, and
the right of each child to be afforded the rights contained in the CRC.

However, the DEVAW and the CEDAW deal with women’s issues directly. The
DEVAW defines violence against women as acts of “gender-based violence that results
in, or is likely to result in, physical, sexual or psychological harm or suffering to the
women . . . whether in public or private life.” This declaration states that “violence
against women” encompasses “physical, sexual and psychological violence occurring in
the family, including battering, sexual abuse of female children in the household, dowry-
related violence, marital rape, female genital mutilation and other traditional practices
harmful to women, non-spousal violence and violence related to exploitation.” The
CEDAW protects women from discrimination. It requires members of the CEDAW to
report to a committee on the measures their governments are taking to comply with the

72
provisions of the convention.164 There is no doubt that the sale of a bride in the marriage
market and the treatment with her on the basis of her dowry value in the matrimonial
home is a subject of gender-based discrimination and therefore comes under the purview
of CEDAW’s provisions. In its first report to the committee, the Indian government
clarified its attempts to deal with dowry deaths.165 It reported that the newly-enacted
Dowry Prohibition Act criminalized dowry transactions and dowry deaths. But no other
measures have been taken by the government of India to end the dowry death problem
till now. Thus in absence of adequate laws the Indian government fails to take necessary
step to comply with the CEDAW.

The Committee provided the CEDAW’s signatory states with general

recommendations about ending gender-based violence. Some of the recommendations
sometimes give guidelines to the member states regarding how to end the problem.
Paragraph 24(t)(i) to General Recommendation No. 19 is of particular relevance to
India’s dowry death problem, which states that “States . . . should take all legal and other
measures that are necessary to provide effective protection of women against gender-
based violence, including, inter alia . . . effective legal measures, including penal
sanctions, civil remedies and compensatory provisions to protect women against all
kinds of violence, including, inter alia, violence and abuse in the family.”166 Thus it
provides civil remedies to the families of a victim in a dowry death with compensatory
damages.

These instruments do not provide remedies to a private individual. The Optional

Protocols to international instruments provide potential remedies to individual women
for the violation of human rights as a result of dowry violence. But, India is not a
signatory of these Optional Protocols. One author argues that signing the international
Optional Protocols can’t solve the problem of India at this time. Even in that case, social

164
Article 18, CEDAW
165
Report of the Committee on the Elimination of Discrimination against Women on its twenty-second
session and twenty-third session 2000, Source-
http://www.un.org/womenwatch/daw/cedaw/reports/a5538.pdf Last visited on 26 th April 2012.
166
Ibid.

73
pressures may force the victim’s families not to take legal action. In case of poor victims
pursuing litigation under an Optional Protocol is not possible.167

In conclusion, it can be said that the assessment of the chief international legal
documents relating to women highlights the different role of women in society. This role
of women has been moved far away from the old restrictive definition of women as wife,
mother and daughter. Thus these documents reflected a dynamic conceptualization of
women’s role.168

The name of the United Nations comes first when we speak of International
Organizations, the term refers to many governmental, intergovernmental and non-
governmental organizations of local, national, regional or global origin, but its ambit is
international and working in almost all the countries. The inspiration behind the working
of these international organizations is their firm conviction in the worth of the human
person and in human rights and fundamental freedoms. The fight of international
organizations for the women’s cause is the recognition of the fact that the gender
inequalities in society should be eliminated by giving priority to empowerment of
women. International organizations working on women are based on the international
law, human rights law, humanitarian law, international legal norms and principles etc. 169

The inspiration behind the working of these international organizations is their

firm conviction in the worth of the human person and in human rights and fundamental
freedoms. The fight of international organizations for the women’s cause is the
recognition of the fact that the gender inequalities in society should be eliminated by
giving priority to empowerment of women. Therefore international organizations
working on women are guided by the body of international law, human rights law,
humanitarian law, international legal norms and principles etc.170

The Convention on the Elimination of All Forms of Discrimination against

Women is considered as the supreme international human rights instrument for the
167
www.law.suffolk.edu/highlights/stuorgs/...40/.../Bhave_Article_FINAL.pdf Last visited on April
3,2012
168
See Supra note 11 at p.12
169
Ms. Rachel Mayanja, Special Adviser on Gender Issues and Advancement of Women; G8
INTERNATIONAL CONFERENCE ON VIOLENCE AGAINST WOMEN, September 2009
170
Ibid.

74
elimination of discrimination against Women. Other international human rights
instruments are also working very sincerely in the protection and promotion of human
rights of women. The name of Human Rights Committee, the Committee on the
Elimination of Racial Discrimination, the Committee on Economic, Social and Cultural
Rights and the Committee on the Rights of the Child are very pertinent to mention.

International law provided many fruitful forums for developing and advancing
law relating to women. The enactment and enforcement of the obligations of
internationally agreed commitments in the domestic laws remains with the member states
and in this area member states are not working properly. The implementation of the
provisions of international law in the domestic laws to identify and punish all forms ill
treatment against women and girls is no doubt the aim of the UN.171

Without proper national laws and their effective enforcement, the importance of
international law will be muffled and of little significance. Actually, international law
has no authority to control the national issue without taking help from the national
government. Thus member states have to make proper laws incompliance with the
provisions of international law and to cooperate with the international bodies. Thus, it is
important that rigorous efforts have to be made to build up appropriate laws and enforce
those which have already been enacted. Only in this way proper assessment of progress
of the crisis can be done. To set up an appropriate national legal structure for eliminating
violence and discrimination against women, a proficient national atmosphere is
mandatory.172

Existing legal frameworks at the national level continue to be inadequate. Laws

are discriminatory in nature but many states go on with those provisions with the
knowledge that women are suffering. In the matter of family and personal laws, there are
so many discriminatory provisions concerning age of marriage, citizenship, divorce,
guardianship of children and marital power of the husband, inheritance right. The penal
codes of a number of countries contain discriminatory provisions, especially in relation

171
ibid
172
ibid

75
to violence against women. Nationality laws continue to discriminate against women by
restricting their capacity to bestow their nationality to their children.

Some time, constitutions recognize the precedence of customary and religious

laws but they are discriminatory in nature. In many countries, statutory, customary and
religious laws co-exist and this multiple legal systems create problem regarding
application. Even where legal reforms have made, a number of factors have slowed down
apt and successful enforcement of the laws. In a number countries, public officials, the
general public and women themselves remain unaware about the existence of the
provisions of the national and international laws in favour of women. The police and
judiciary continue to show partiality against women and also are deficient in awareness
regarding the existence of legislation relating to women’s rights and their duties under
that legislation. Women’s reluctance to claim their rights, as well as the cost of remedial
mechanisms and delays in the administration of justice are some important obstacle in
the way to success.

National action plans, policies and programmes do not expose the full scope of
the women’s right guaranteed under international instruments nor do they provide proper
implementation mechanisms. National action plans are not properly and adequately
funded. Researches related to women are unsatisfactory due to restricted economic,
human and technical resources. Insufficient political will, inadequate finance, positive
attitude, lack of available resources are also acts as an impediment to the success of
materialization of women’s equality.

Many efforts have been made at the international, regional and national levels to
promote, protect and execute the human rights of women. Many States have reinforced
their national legal and policy frameworks to establish mechanisms for promoting
women’s rights, to raise awareness and to support group effort with NGO and other
venture holders. Despite these progresses, much more needs to be done to ensure the
enjoyment of women’s rights to the fullest extent. Logical and rigorous attempt must be
made from all levels of society. States should build up strategy to include the
international provisions into the domestic law.

76
LAGISLATIVE RESPONSE TOWARDS
WOMEN PROTECTION WITH
REFERENCE TO DOWRY DEATHS
IN WEST BENGAL

CHAPTER -3

77
 Chapter - 3
LAGISLATIVE RESPONSE TOWARDS WOMEN
PROTECTION

“Women are deities of prosperity. By cherishing women, one cherishes the goddess of
prosperity herself and by afflicting her one is said to pain the goddess of
prosperity.”(Manu’s Code - III, 56)

Women are the real pillars of a society upon which present as well as future
generation of a nation builds. The role of women is no doubt meaningful in the
reproduction of human races, but patriarchy and conventional society have reached
women to a position of triviality. Women are the subject of mistreatment both within and
outside the house. Innumerable laws have been enacted by the legislature but the position
of women remains unaffected. Brutality, mistreatment, inequity, torture etc. trouble a
woman throughout the whole life. She is a load to her family and parents feel released
when the daughter becomes married. Now, in the nuptial home, she has to experience a
several kinds of torture in the hands of husband and in-laws. Each year more than ten
million married women suffer pain and serious injurious from their husband and in-laws.

After independence, India has taken the responsibility to make laws for the
protection of women. Indian legislature has tried to modify the old concept of male
subjugated society by adopting the principles of impartiality. The Constitution provided
equal rights of men and women and also entrusted the duty upon the state to make
special provisions to recognize the interests of women effectively. As a result various
central as well as state laws were enacted to prevent exploitation and discrimination of
women.

65 years of our Independence have passed but still we are discussing that women
of India is a subject of exploitation by a patriarchal society, which amply clears that our
existing laws are not enough to protect this vulnerable group. Only discussion can’t
change the position of women. So, we have to hit upon the answer by evaluating the
existing laws and by identifying the lacuna in it. Now, the need of the hour is the

78
reassessment of the existing provisions and to explore the real cause why the position of
women remain unaffected despite the continuous endeavour by almost all the authorities.

PART –I
Women Protection under Constitutional Law

The Indian constitution is a complete document which guarantees various

principles of Justice, liberty, equality and fraternity irrespective of their sex, community
or place of birth. To assure social Justice to the citizens of India is the goal of the Indian
Constitution. The principle of equality and non-discrimination are its two weapons. The
constitution contains many provisions for women.

1. Preamble - The preamble of Indian Constitution ensures the principles of

equality for all. The words, ‘We the people of India’ in the Preamble includes both ‘men’
and ‘women’. But, in reality the picture is different. Controversy arises several times
regarding the applicability of neutral norm. In most of the cases neutral norm applies to
men only. I can cite here one case, which may seem ridiculous now, but is true.173

Calcutta High Court in re Regina Gua case (29th August, 1916)174 and the Patna
High Court in re Sudhansu Bala Hazra case (28th November, 1921)175 rejected the
applications of women for enrolment under the Legal Practitioners Act. The full benches
of these Courts held that women were not included in the term ‘person’. However, the
Allahabad High Court is the first court to enroll a lady named Cornelia Sorabji under
‘person’ clause on 24th August, 1921.

2. Fundamental Rights - Fundamental Rights guaranteed under Part-III of the

Indian constitution ensure Justice for all the citizens irrespective of sex. Articles 14,
15(1), 15(2), 16(1) and 16(2) prohibit discrimination against any citizen/person on the
ground of sex among other grounds.

173
G.B.Reddy “Women And Law”, Gogia Law House, Allahabad, 4th edition (2000).
174
Regina Guha, (I. L. R. 44 Cal. 290),
175
Sudhanshubala Hazra, (I. L. R. 1 Pat. 104),

79
 Justice Bhagwati stated176“These fundamental rights represent the basic values
cherished by the people of this country (India) since the Vedic times and they are
calculated to protect the dignity of the individual and create conditions in which every
human being can develop his personality to the fullest extent”. Again, S.C. in the case of
G. Dasaratha Rama Rao177, Stated that Article 14 is available to all, irrespective of
whether the person claiming it is a citizen or not.

Whenever controversy arises our government and judiciary come to help women
by upholding the validity of special measures under Article 15(3) of the Indian
constitution. Supreme Court stated178 that the power of state under Article 15(3) is wide
enough to include the entire range of state activity. Consequently, the state has
introduced provision for reserving 1/3rd seats for women in public employment, in
administration to educational institutions and the legislatures at least at the local self
Government level, among other schemes for their benefit. However, the power conferred
upon the state under Article 15(3) cannot be whittled down in any manner by Article 16.
However, Supreme Court further stated that since Article 15(1) and 15(3) go together,
the protection of Articles 15(3) would be applicable to employment under the state
falling under Articles 16(1) and 16(2) of the constitution. However, Articles 243D and
243T are inserted to our constitution by 73rd and 74th Amendment in 1992 to provide
for reservation of seats to the women in Elections to the Panchayat and the
Municipalities.

The right to life is guaranteed under Article 21 of the Constitution of India. It

includes everything which makes a human being’s life meaningful. Thus right to
equality, dignity, development, culture, heritage and tradition are inherent rights in every
human being. The Supreme Court in the case of Sunil Batra179 declared that ‘right to
live’ includes the right to live consistently with human dignity. In Kharak Singh case180,
Supreme Court of India held that the word life means right to live with human dignity.

176
Maneka Gandhi vs Union of India, AIR 1978, S.C.597
177
G. Dasaratha Rama Rao vs state of Andhra Pradesh AIR 1961 SC 564
178
A.P. vs P.B. Vijoy Kumar AIR1995,S.C.1648
179
Sunil Batra vs Delhi Administration AIR1978 SC1575
180
Kharak Singh v. State of U.P.AIR 1963 S.C. 1295.

80
 In Francis Mullin case181, Supreme Court of Indian explained. ‘Right to life’
includes the right to live with human dignity and all that goes along with it, namely, the
bare necessities of life such as adequate nutrition, clothing and shelter over the head and
facilities for reading, writing and expressing oneself in diverse forms freely moving
about, mixing and co-mingling with fellow human beings.

Our Constitution also prohibits traffic in human beings and other similar forms of
forced labour.182 It says that any contravention of this provision shall be an offence,
which is punishable in accordance with law.183 Accordingly, parliament has passed the
Immoral Traffic (Prevention) Act1956, which was subsequently amended in the present
form. However, the object of which is to abolish the practice of prostitution and other
forms of trafficking.

According to International Labour Organization, in India, 1.2 million children are

believed to be involved in prostitution. A CBI statement said that studies and surveys
sponsored by the ministry of women and child development estimated that about 40% of
all India's prostitutes are children.184

3. Directive principle of state policy - Part IV of the Indian constitution

deals with the Directive principles of state policy. It includes many directives to the state
to improve the status of women. It provides equal right of men and women to adequate
means of livelihood.185 Thus it guarantees equal rights for all without any discrimination

Equal pay for equal work for both men and women is also guaranteed.186 So state
is under a constitutional obligation to secure equal pay for equal work. State has enacted
the Equal Remuneration Act 1976 to give effect to these directive Principles. The
Supreme Court said187 that the principle of “Equal pay for equal work though not a

181
Francis Mullin vs. Union Territory of Delhi, AIR 1979 SC 746.
182
Article 23, Constitution of India
183
Ibid.
184
CNN, May 11, 2009 ;Ref-.www.cnn.com
185
Article 39(a), Constitution of India
186
Article 39(d), Constitution of India
187
Randhir Singh vs Union of India AIR 1982 SC 879

81
fundamental right is certainly a constitutional goal and therefore, capable of enforcement
through constitutional remedies under Article 32 of the constitution”.
It directs the state to protect the health and strength of workers men and women
and also mentioned that the tender age of the children should not be abused and no
citizens should be forced to work under a condition unsuited to their age and strength.188
Our Govt. has enacted multiple legislations for the protection of the right and interest of
the working women in different field. The Equal Remuneration Act 1976 grants equal
pay for equal work. Factories Act 1948 seeks to provide crèche for children of women
workers. Maternity leave are provided to the female workers under the Employee’s State
Insurance Act 1961.

The Constitution directs the State to make effective provision for securing the
right to work, to education and to public assistance in cases of unemployment, old age,
sickness and disablement, and in other cases of undeserved want within the limits of its
economic capacity and development.189

The constitution incorporates a very important provision for the benefit of

women, which directs the state to make provisions for securing just and humane
conditions of work and for maternity relief.190 The state has tried to implement this
directive by enacting the Maternity Benefit Act 1961. Thus the court converted what
seemed a non-justifiable issue into a justifiable one by invoking the wide sweep of the
Article 21. More recently, the court performed a similar exercise when, in the context of
articles 21 and 42, it evolved legally binding guidelines to deal with the problems of
sexual harassment of women at the work place.

To secure for the citizens a uniform civil code throughout the territory of India is
the most important directive.191 But, unfortunately the state has not yet made any efforts
to introduce Uniform civil code in India. Our Judiciary has already recognized the
importance of uniform civil laws in several cases. In Sarala Mudgal case,192S.C.
directed the central Govt. to take a fresh look at article 44 of the constitution ,which

188
Article 39(e), Constitution of India
189
Article 41, Constitution of India
190
Article 42, Constitution of India
191
Article 44, Constitution of India
192
Sarala Mudgal vs Union of India (1995) 3 SCC 635

82
enjoins the state to secure a uniform civil code which, according to the court is
imperative for both protection of the oppressed and promotion of national unity and
integrity.

Beside these specific provisions, there are so many other provisions, which are
also applicable to the men and women without any discrimination. Our constitution
imposes a duty on every citizen to renounce practices derogatory to the dignity of
women.193 The aim of this direction is to prevent all types of practices derogatory to the
dignity of women. Accordingly, Parliament has enacted several general and special laws
to protect women.

Providing many privileges to women is not the only remedy to the age old
discrimination and exploitation against women, but also all forms of gender based
discrimination should be evaded. State should create such circumstances so that women
can realize their economic, social and cultural right. Article 38 and Article 43 of the
Constitution persist that the State should create sufficient work for the people so that
they can work on the basis of their capacity. Though, it is not possible that everybody
should be provided with a job, it would be sufficient if work could be found for all the
competent men and women and everyone is guaranteed the right to participate in the
production of national wealth and to enjoy the fruits thereof.

In the matter of political empowerment the constitution of India has already

introduced reservation of 1/3rd seats for women in Panchayats194 and reservation of

1/3rd seats for women in Municipalies.195 Similar reservation in assembly and

parliamentary constituencies was also sought for.

The goal of the National Policy for the empowerment of women is to bring about
the advancement, development and empowerment of women. Some of the specific
objectives of this policy are: a) Creating an environment through positive economic and
social policies for full development of women to enable them to realize their full
potential, b) Equal access to health care, quality education at all levels, career and

193
Article 51A (e), Constitution of India
194
Article 243D, Constitution of India
195
Article 243T (2) and (3), Constitution of India

83
vocational guidance etc, c) Elimination of discrimination and all forms of violence
against women and girl child.

Women empowerment is a myth until they are conferred equality before law. The
73rd and 74th Amendments of constitution of India in 1993 are landmarks to ensure
political empowerment of women. These provisions surely ensure legal protection of
women's rights, but socio-economic rights of freedom and decision-making is still not
realized to the extent of social empowerment. One of the reasons is the rigid patriarchal
structure of the Indian Society.

To fulfill the constitutional mandate, our Government has taken the policy for
economic empowerment of women through poverty eradication, micro credit
programmes, training of women to facilitate their role in all walks of life. The social
empowerment of women is made possible only through effective materialization of the
constitutional provisions regarding education, health, nutrition Sanitation, gender justice
and eradication of violence against women in all its forms etc. The effective
implementation of the provisions of the constitution at all levels can be an enormous
action towards the all round development of women. In the words of Kofi Annan,196
"Gender equality is more than a goal in itself. It is a precondition for meeting the
challenge of reducing poverty, promoting sustainable development and building good
governance."197

PART-II
Women Protection under Criminal Laws

In the words of Asha Bajpai, “She is a burden, a curse and a liability. She is used,
abused, misused, married and murdered. Sure, we do have laws but she is guilty of a
crime, a crime undefined in the Indian penal code –the crime of being born as a girl in

196
seventh Secretary-General of the United Nations, from 1 January 1997 to 31 December 2006
197
http://ezinearticles.com/?Women-Empowerment---Myth-Or-Reality&id=916590, Last visited on22nd
December,2011

84
India.”198 Patriarchal Society and lack of consciousness of women result in
discrimination, deprivation and exploitation of women.

Most of the crimes against women happen within marriage lock. Bride burning,
dowry deaths, sati, domestic violence, marital rape etc. are very common in the life of
Indian married women. Of course there are some crimes which may happen in any case.
Altogether, 2.28 lakh incidents of crime against women were reported in 2011 as
compared to 2.13 lakh in the previous year. During 2010, there were 22,172 Rape cases,
29,795 cases of Kidnapping & Abduction, 8,391 cases of Dowry Death, 94,041 cases of
Dowry Torture, 40,613 cases of Molestation , 9,961 cases of Sexual Harassment,36 cases
of Importation of Girls under Sec. 366-B IPC, 2,499 cases recorded under Immoral
Traffic (Prevention) Act, 1956, 10.895 cases were recorded under Indecent
Representation of Women (Prohibition) Act, 1986 and 5,182 cases were reported under
Dowry Prohibition Act, 1961.199

However, to combat violence and exploitation against women both in public and
private life, our Govt. has taken the following steps by making legislation.

1. Criminal Procedure Code - S.C said, Section 125 of the Criminal

Procedure Code 1973 is a measure of social justice and specially enacted to protect the
women and children falls within the constitutional sweep of the Article 15(3) reinforced
by Article 39. There is no doubt that section 125 to 128 of the code calling for
interpretation by the courts are not specified but vibrant words with social function to
fulfill.200

The Code of Criminal Procedure 1973 makes an exhaustive provision for the
maintenance of wife, children and aged parents. The provisions are contained in Sections
125 to 128 of the Code. The object of the proceeding is to prevent vagrancy by
compelling a person to support his wife and child or father or mother unable to support

198
Asha Bajpai ”The Girl Child and the law” in report of the seminar on ‘Rights of the
child’NLSU,Bangalore. , (1990)
199
NCRB report, 2011
200
Ramesh Chandra Kaushal v. Mrs. Venna Kaushal,1979 Cr.L. J 3 S.C.

85
themselves.201These Sections impose a noble and fundamental duty on any person to
maintain his wife, children and parents if they are not able to maintain themselves.
Therefore a married daughter, who has an independent source of income, is also under
legal obligation to do this task.202

According to Section 125, the following conditions must be satisfied before a

wife, minor child or parents claim maintenance from a man (1) the person must have
sufficient means (2) he has neglected or refused to maintain (3) the wife, children or
parents are not able to maintain themselves.203

However, in West Bengal Sec 125 of Cr. P.C. has been amended (vide W.B. Act
No 25 of 1992) with effect from 2.8.1993. In Sub Section (1) of Section 125 of Cr. P.C.,
Rs.1500 has been substituted in place of Rs.500.

The needs and requirements of the wife for a moderate living, the earnings of the
husband and his capacity to earn are relevant factors to determine the quantum of
maintenance.204

Supreme Court held that a divorced Muslim woman so long she has not re-
married, is a wife for the purpose of Section 125 of criminal procedure code and is
entitled to claim maintenance from her former husband. The Supreme Court also said
that right given under Section 125 of Cr. P.C. is a statutory right and if there is any
conflict in between the provisions of personal law and Section 125 of Cr. P.C., it can
override that provision of personal law.205Thus it is applicable to all irrespective of their
religion.

Section 125 empowers the Magistrate to impose imprisonment for a term which
may extend to one month or until the payment, if sooner made.206Law does not impose
any duty on women to prove the income of her husband, on the basis of which

201
Vijaya v.kashirao 1986 Cr.L.J1399
202
ibid
203
K.M. Negamallppa v.B.J.Ledoor 1985 Cr.L.J.1706
204
Raibari Behera v.Mangaraj Behera,1983 Cr.L.J.125
205
Mohd. Ahmed vs Shah Bano Begum AIR 1985 SC 124
206
Shaheda Khatoon v. Amjed Ali,1999 (5)SCC672

86
maintenance amount is fixed.207In a decision, Hon’ble Calcutta High Court has observed
that divorced wife is entitled to claim maintenance even if divorced by mutual
consent.208

Furthermore the law has also given the liberty to the women for the enhancement
of the maintenance allowance in view of the provisions of section 127 Cr. P.C. and as
such the court is also entitled to enhance the maintenance of the destitute women
according to the enhancement of the income of the husband and on proof of a change in
the circumstances of any person.

The factum of marriage is not required to be proved beyond reasonable doubt. If

the preponderance of probability indicates that the applicant wife’s claim is trust worthy,
i.e., sufficient to act under section 125 Cr.P.C. and even the evidence of long
cohabitation as husband and wife may proof a married relationship.209

Similarly, Section 160 Cr.P.C. has also given the sufficient protection to the
women and in view of the provisions of section 160 Cr.P.C., no police officer is
empowered to order a woman requiring her attendance before himself. A woman shall
not be required to attend at any place other than the place in which such woman resides.

In Section 165 Cr. P.C. protection also has been given to the women at the time
of search and seizure. Regarding search proper notice is to be given by police before
breaking in a house where a woman lives in seclusion. Not only this, if a woman is to be
searched at all a woman police officer shall conduct it.

Another significant procedural change was the amendment of section 327 of the
Cr. P.C. by the Criminal Laws (Amendment) Act, 1983 which added Sub-Section (2) and
(3). Section 327 of Cr. P.C. deals with the right of the accused to an open trial but taking
into account problems faced by rape victims in open court, the new sub-sections were
inserted. Sub-section (2) provides that the inquiry into and trial of rape or an offence
under Sections 376, 376A, 376B, 376C or Section 376D of IPC shall be conducted in

207
Shivani Chattopadhyaya v.siddarth Chattapadhyaya 2000 SC952
208
Nanu v. vasantha1984 (2) Cr.L C.177 (Ker)
209
Dwarika Prasad Satpathy v.Bidyut Proya Dixit 1999 (8) Supreme Court

87
camera, provided that the presiding judge may if he thinks fit or on an application made
by either of the parties, allow a particular person to have access to or to remain in, the
room or building used by the court. And according to Sub-Section (3) where any
proceedings are held under sub Section (2) it shall not be lawful for any person to print
or publish any matter in relation to any such proceedings, except with the previous
permission of the court.

In case of prosecution for offences against marriage a woman, who is according

to the local customs and manners ought not to be compelled to appearing public, some
other person may with the leave of the court be able to make the said complaint on her
behalf in respect of an offence punishable under chapter xx of the Indian Penal Code.210

It have given the liberty to an woman to file complaint in the court or lodge F.I.R.
against her husband and his relatives for maltreating her and for misappropriation of her
stridhan within the jurisdiction of that court where she resides with her father or other
relations under sections179, 198-A and 181 (4) of Cr. P.C.211 A woman, if she be a
victim of rape will be entitled to get compensation as per the order of the court.212

The first proviso to sub-section 1 of section 437 Cr. P.C removed the embargo in
respect of granting bail to a woman even if there are reasonable grounds of believing that
she is guilty of an offence punishable with death or imprisonment for life. Section 416 of
the cr. p.c. also has given the protection to the pregnant woman.

Thus the primary object of the section is to enable a discarded wife, a child or
aged parents to get the much needed in a helpless condition.

2. Indian Penal Code and Indian Evidence Act - The provisions

relating to crimes against women can broadly be classified into two categories (1) The
crimes provided for under I.P.C, (2) Crimes identified under special legislation.

210
Section 198 (1) (a) of Cr. P.C
211
Vijoy Ratna Sharma v. State of U.P.1988CR.L.J1581
212
Section 357, Cr. P.C

88
2.1. Outraging the modesty of women - Eve -teasing is a euphemism. The word
is generally used for public sexual harassment or molestation of women by men. It is one
kind of sexual aggression with sexually suggestive remarks.213 It is a very common
incident in to-days life, but sometime it has led to very serious cases. Many persons have
suggested for changing the word with more appropriate term.214 Though, the word ‘Eve-
teasing’ includes all forms of public harassment of woman, but in particular it refers to
two meaning. One is eve (before) teasing i.e. not the actual teasing, but an act before an
actual teasing. So, the act is not serious one. Other meaning implies the seductive nature
of women like ‘Eve’, which is responsible for the aggressive response of the males.

Indian law doesn’t use the term Eve-teasing. As we know that Section 294 of
IPC covers less serious forms of eve-teasing and molestation and Sec 354 of IPC covers
the most serious forms of teasing and molestation i.e. outraging the modesty of a woman.
Molestation is the sexual exploitation of a child or a woman by an adult for sexual
215
gratification. The word ‘modesty’ is not defined in the Indian Penal Code. Section
294 I.P.C punishes a person, who does any obscene act in any public place to the
annoyance of others, shall be punished with imprisonment of either description for a
term which may extend to three months, or with fine, or with both. Standard of
annoyance is that of an ordinary prudent man having regard to the standard of
contemporary public life. Section 292 of the IPC also punishes showing pornographic or
obscene pictures to a woman or girl. In the case of a repeated offence, the offender may
have a fine of Rs.5000 with five years imprisonment imposed. Section 509 of the IPC
punishes for the obscene gestures, indecent body language and filthy comments towards
any woman or girl or for any act which intrudes upon the privacy of woman carries a
penalty of simple imprisonment for one year or a fine or both Section 354 punishes for
assaulting or using criminal force to any woman with the intention or knowledge to
outrage her modesty with imprisonment of either description for a term which may
extend to two years, or with fine or with both. Despite the criminal nature of the deed,
the offenders easily go scot-free because even in the rare cases when complaints are
lodged, it is easy to escape as these crimes are bailable offences.

213
http://en.wikipedia.org/wiki/Eve_teasing, Last visited on 23Feb, 2011.
214
Ibid.
215
http://www. molestation.in/ Visited on Feb 25,2011

89
 The incidents of Molestation under Sec. 354 IPC are 40,613in the country and
have increased by 4.9% over the previous year (38,711). In Calcutta, 4 - 5 cases of eve-
teasing and molestation are reported everyday which makes it 150 cases per month and
1,800 every year. Actual cases are at least ten times more.

Accordingly, in 1986 the Parliament enacted the Indecent Representation of

Women (Prohibition) Act, 60 of 1986 to prohibit indecent representation of women
through advertisements, publications, writings, paintings, figures, pamphlets, etc., and
also provided punishment to those who indulges in such activities.216

Justice Bachawat observed that “the essence of a woman's modesty is her sex.
Even a female of tender age from her very birth possesses the modesty, which is the
attribute of her sex. Under the section 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.217

The National Commission for Women' (NCW) has also proposed to make new
legislation for Eve Teasing. Times of India218 reported that Kolkata police now wants
amendment in Section 354 of the IPC to make the offence non-bailable and the
punishment to be imprisonment up to seven years.

People from all walks of life face such humiliation and many feel the change will
make people stop behaving so outrageously. In 1990, the number of the victims of sexual
harassment was 357, but in 2011 the number is 3320.219

2.2. Dowry Death - In1961, the Dowry Prohibition Act (Act 28 of 1961) was passed
prohibiting giving and taking dowry. The Act was amended in 1984 and 1986 to make it
more effective. The Dowry Prohibition (Amendment) Act, 1984 has made the meaning
of ‘dowry’ wider. Under the Act, more severe punishment is prescribed for the dowry
offenders. It has made some changes in the definition of dowry also. The Act defines

216
http://www.lawyersclubindia.com/articles/print_this_page.asp?article_id=597 Visited on 26 th Feb
2011
217
State of Punjab v. Major Singh AIR 1967 SC63
218
June 17, 2008
219
Anandabazar Patrika, 13 May, 2012

90
dowry as any property or valuable security given or agreed to be given either directly or
indirectly- (a) by one party to a marriage to the other; or (b) by the parents of either party
to a marriage or by any other person, to either party to the marriage or to any other
person, at or before or any time after the marriage in connection with the marriage of
said parties but does not include dower or mahr in the case of persons to whom the
Muslim Personal Law (Shariat) applies. The expression `valuable security’ has the same
meaning as in Section 30 of the Indian Penal Code (45 of 1860).220

The words ‘in connection with the marriage’ have been substituted in place of ‘as
consideration of marriage’, to include three occasions related to dowry. This means
giving or agreeing to give any property or valuable security before the marriage, at the
time of marriage and at any time after the marriage. But such giving and taking must be
in connection with the marriage of the parties.221 The Dowry Prohibition (Amendment)
Act 1986 further enhanced the punishment for the dowry offenders. It also inserted a new
section 113B in the Indian Evidence Act. To eradicate the evil of dowry death, Section
304B was inserted in the Indian Penal Code. And to combat the increasing incidents of
torture of women by their husbands and in-laws in their matrimonial home with a view to
compel her or her relatives to satisfy any unjustified demands, a new section 498A was
introduced in the Indian Penal Code by the criminal law (Second Amendment) Act 1983
(Act 46 of 1983), as a supplementary Section of Section 304B of Indian Penal Code.

However, section 304B, IPC says 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 relatives of her husband for, or in connection
with, any demand for dowry, such death shall be called “Dowry death” and such husband
or relatives shall be deemed to have caused her death. For the purpose of this Sub-section
“dowry” shall have the some meaning as in Section 2 of the Dowry Prohibition Act 1961
(28 of 1961).It also says that 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. In addition to these criminal remedies, a civil remedy was also

220
Section 2 Dowry Prohibition (Amendment) Act1984
221
Satvir Singh and others vs. State of Punjab and another, AIR 2001, SC 2828.

91
introduced by enacting the Domestic Violence Act 2005. However, the Act includes the
violence relating to the demand of dowry.

2.2.1. Effect of the Criminal Laws (Amendment) Act - As the dowry death takes place
inside the four walls of a home. In most of the cases it is impossible to collect
independent and outside evidence. The family members of the husband are not ready to
go against him and nobody comes to record the woman’s declaration at the time of death.
Her cries for life remain unheard before her death and after her death for justice because
most of the cases accused release due to lack of evidence. Law comes to help her by
introducing Criminal Laws (Second Amendment) Act, 1983. It inserted Section 113A in
the Indian Evidence Act, which empowers the court to presume ‘dowry death’ under
situation when it is proved that soon before the death of a woman she was subjected to
dowry related cruelty or harassment and to combat the torture of women by their
husbands and in-laws in their matrimonial home with a view to compel her or her
relatives to satisfy any unjustified demands, a new section 498A was introduced in the
Indian Penal Code as a supplementary Section of Section 304B of Indian Penal Code.

2.2.2. Dowry and Live-in relationship - The S.C. rejected the plea of Mr. Koppisetti
Subbarao that he was not liable to be prosecuted under anti-dowry provision, since there
was no valid marriage. Justices Arijit Pasayat and A.K Ganguly said “the nomenclature
of dowry does not have any magic charm written over it. It is just a label given to
demand of money in relation to marital relationship.”222

However the offences against Dowry prohibition Act is considered as offences

against individual women, not against the state. The definition of Dowry is not
comprehensive enough, the husband and his family can easily escape from the liability of
demanding dowry by taking the plea of gift of marriage. There is a confusion regarding
what gift is voluntary and what is given under pressure of a demand. Under the Act, both
the giver and taker of dowry are guilty. However, an important question can be raised
that if a giver is recognized as guilty then who will give the evidence against the dowry
seeker? The bride’s family is in vulnerable position and it is a matter of family honour to
them. Thus even when law certifies women’s rights they are not properly implemented

222
Sunday Times of India, May 3, 2009

92
and for these reasons we can hardly see any instance when the bride's family being
prosecuted for giving dowry.223

2.3. Miscarriage and law - Sections 312 to 316 of the Indian Penal Code deal with
the offences relating to the causing of miscarriage, injury to unborn children and
exposure of infants. Section 312 punishes the person who causes miscarriage (abortion)
with imprisonment up to 3 years or with fine or with both. However, if the termination of
Pregnancy is done by registered medical practitioner for the purpose of saving the life of
the woman and in good faith, the same will not amount to an offence. And causing
miscarriage to a woman who is quick with a child that is who experiences the peculiar
perception due to the moving of the foetus in the mother’s womb is punishable with
imprisonment of seven years. A woman, who causes herself to miscarry is also
punishable under Section 312 of the Indian Penal Code.

If miscarriage is caused without woman’s consent, the offender is punishable

with imprisonment of life or for ten years. Here stage of Pregnancy is immaterial.224 If
death of a woman is caused while causing miscarriage the offences punishable with a
maximum of ten years imprisonment.225 If the Act is done without the consent of the
woman, offender will be punished with the imprisonment for life under Sec 314. And, if
any act is done with the intention of preventing a child being born alive or to cause it to
die after the birth, the offender is liable to maximum punishment of ten years. But if the
act is done to save the life of the mother it is not punishable.226 According to Section 316
of IPC, an offender can also be punished for causing death of a child, who is beyond the
stage of quickening but before the birth. The offence defined under section 301 would be
applied here as such child is considered as a living child.227

However, the parliament has passed The Medical Termination of Pregnancy Act
1971 and the Pre-natal Diagnostic Technique (Regulation and prevention of Misuse) Act
1994 to deal with unlawful miscarriages and also the infanticide as well as foeticide.

223
Shalu Nigam; “Consumerism, Dowry and the Marginalisation of Women in India” Kali’s Jug, March,
2001
224
Section 313, I.P.C.
225
Section 314, I.P.C.
226
Section 315, I.P.C.
227
S.C Tripathi,.& Vibha Arora, “Law relating to women and children”, Central Law Agency 3rd
edition2008

93
These two Acts permit the termination of Pregnancy by registered medical practitioner
where its continuance would involve a risk to the physical or mental health of the
pregnant mother or the child. The Medical Termination of Pregnancy Act 1971 has
recognized eugenic grounds as one of the grounds of termination of pregnancy, but it
fails to include any provision regarding the time limit of termination by restricting it
within 20 weeks. Further, the legislature has not prohibited use of diagnostic techniques
to discover foetal disabilities. Scientific reports have suggested that some deformities in
the foetus can be only detected in the very late stage of pregnancy and thus abortion is
indirectly permitted even after the 24th week of pregnancy. Act also permits for the
termination of pregnancy if would involve risk or grave injury to the mental health of the
mother, but it does not define what would involve risk or grave injury to her mental
health. It is left for the interpretation of clause by doctor.228

The Pre-natal Diagnostic Technique (Regulation and prevention of Misuse) Act,

1994 is a result of the protest against the misuse of sex determination tests to ascertain
the gender of a child in the early stages of Pregnancy which habitually resulted in the
female foeticide. But, the tests, which were originally designed for detection of
congenital abnormalities of the foetus, are being misused for knowing the sex of the
foetus. Preference for the son is the root cause of killing the female child and the
patriarchal attitude of the society and the practice of dowry is playing the leading role
behind the female foeticide. There are no preparatory and regulatory mechanisms and
policies in India to prevent the society from its socio-cultural son preference and killing
of female foetus.

2.4. Kidnapping and Abduction - Sections 359 to 374 of the Indian Penal Code
deal with the offence of kidnapping. It is of two types; kidnapping from India and
kidnapping from lawful guardianship. ‘Kidnapping from India’ means conveying any
person beyond the limits of India without his consent or of some person legally
authorized to consent on his behalf. ‘Kidnapping from lawful guardianship’ means
taking or enticing any minor under sixteen years of age if a male or under 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

228
http://www.legalserviceindia.com/article/ abor_tion.htm Visited on 02nd March 2012

94
guardian. Abduction is compelling by force or inducing by any deceitful means any
person, to go from any place.229

The cases of kidnapping have reported an increase of 15.7% as compared to

previous year (25,741). In the cases of Importation of Girls (Sec. 366-B IPC) a decrease
of 25.0% has been observed in such cases as 36 cases were reported during the year 2010
as compared to 48 cases in the previous year (2009). Bihar, Jharkhand and West Bengal
have reported 8 cases each accounting for two-third of total such cases at the National
level.230

Indian law treats the offence of kidnapping very seriously. Article 23 of the
Indian Constitution guarantees the right against exploitation. It prohibits traffic in human
beings and forced labour. Article 24 prohibits employment of children below 14years of
age in factories, mines or other hazardous employment. The Indian Penal Code also
prescribes punishment for the offences like kidnapping a minor for purposes of begging;
kidnapping for murder; kidnapping for ransom; kidnapping with intent to secretly and
wrongfully confine a person; kidnapping a woman to compel her marriage; the
inducement of any minor girl under the age of 18 years for the purpose of forcing her or
seducing to illicit intercourse with another person;231 the importation of a girl below 21
years of age from a foreign country;232 kidnapping in order to subject a person to
grievous harm, including slavery; kidnapping a child under 10 years old; and stealing or
buying a minor for the purpose of prostitution; compelling any person to labour against
his will.233

The Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA) now
renamed as Immoral Traffic Prevention (Amended ) Act 1986 (IPTA) prohibits Traffic
in women and girls for any immoral purpose. Child Labour (Prohibition and Regulation)
Act, 1986 also Prohibits employment of children in some occupations. Information
Technology Act, 2000 prohibits publication or transmission of any material in electronic
form which is lascivious or appeals to prurient interest or if its effect is such as to tend to

229
Section 360, 361 and 362, IPC
230
NCRB report on Crime Against Women, 2010
231
Section 366A, IPC
232
Section 366B IPC
233
Section 374,IPC

95
deprive and corrupt persons to read, see or hear the matter contained or embodied
therein.234 India has specified some guidelines for the Internet Service Providers to
prevent abuse of such services. Juvenile Justice (Care and Protection of Children) Act,
2000 deals with the law relating to juveniles in conflict with law and children in need of
care and protection. The Act also prescribes for the treatment, development and
rehabilitation of such children.235

In India police officers receive specialized training in respect of kidnapping

cases. There is a specific Criminal Intelligence Cell at national police headquarters. State
police forces has specialized units devoted to countering kidnapping and combating
crimes against women. Furthermore, liaison services between the law enforcement
authorities and the victim’s family are maintained during kidnapping cases and
counseling services to both the victim and the family are provided to the extent possible.
The police make every effort to return the victim to their family, although the
Government ran various homes for women and juveniles who required shelter once they
have been released. Additional support is also provided by non-governmental
organizations.236

However, the legal protection has been further strengthened by the Supreme
Court by its exemplary judgments in several cases. However, S.C. asked to set up of an
advisory committee to eradicate child prostitution and to make an in depth study of the
problem to evolve suitable schemes for the rescue and rehabilitation.237 The Dept. of
Women and Child development created a ministry of state for women and child
Development and the National Human Rights Commission for women (NCW) has taken
the matter of trafficking as most important.238

After a long discussion we can say that prostitution is not an offence in India, but
practicing it in a brothel or 200 meters of any public place is illegal. Some extent it

234
Section 67 ITA, 2000
235
CHILD TRAFFICKING IN INDIA: A CONCERN. by DR. (MRS.) INTEZAR KHAN Department of
Social Work Jamia Milia Islamia, New Delhi ref.-www.india.govt.in.Last visited on 09 th Feb 2011
236
Commission on Crime Prevention and Criminal Justice,Vienna, 13-22 May 2003;”International
cooperation in the prevention, combating and elimination of kidnapping and in providing assistance to
victims”; Report of the Secretary-General. Ref. -www.unodc.org. Last visited Jan 5th 2012
237
Vishal Jeet V. Union of India (1990) 3 Sec. 318; AIR 1990 SC 1412 and in Gaurav Jain V. Union of
India (1997) VII (3) crimes 40
238
Article by Dr .krishna Chandra Jena, Cr.L.J.,March, 2008

96
seems ambiguous as it fails to clarify whether prostitution ought to be a legitimate way
of earning or living if entered into by choice. Another important issue is who are the
offenders to be punished? It is a fact that a prostitute is exploited in the hands of the
traffickers, procurers, pimps, brothel keepers and customers like domestic slave or
bonded labourer. So the focus of the law should be on prevention rescue and
rehabilitation and making alternative arrangement for their livelihood, otherwise there
will be a great possibility of re -involvement in the prostitution. But, unfortunately
neither the present Act, nor the amendment Act discuss the issue of rehabilitation of the
prostitute.239

2.5. Rape Laws - The word rape is derived from the Latin term ‘rapio’ which means
to seize. Rape literary means a forcible seizure and that is the essential characteristic of
the offence.240According to the all India figures from NCRB, the number of rape cases is
increasing each year. There were 22,172 reported Rape cases in the country. And 8.9%
(1,975) of the total victims of Rape were girls under 14 years of age.241

Section 375 defines the offence of rape. It means the sexual intercourse with a
woman against her will, without her consent, with her consent, which is obtained by
putting her in fear of death or hurt, with her consent when man knows that he is not her
husband and the consent is given by the woman under the misconception of his identity
as her husband, with her consent when at the time of giving such consent she is under the
influence of some intoxicated materials and with or without her consent when she is
under sixteen years of age.

The Explanation to Section 375 provides that it is not necessary that there must
be a complete and total penetration, mere penetration is sufficient to constitute the
offence.

According to the Exception to Sec. 375 sexual intercourse by a man with his own
wife if she is not under the age of fifteen years does not amount to rape. Thus it implies

239
Laxminarayan Sahoo, “Immoral trafficking of Women and Children in India” Cr.L.J.,March, 2012
240
http://www.legalserviceindia.com/article/art/Rape_Texual_Psychological.htmLast visited on 23rd
March 2012
241
NCRB report, 2010

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that if the age of the wife is below 15 then it will amount to the offence of rape. And if
the age of the wife is below 12 then husband will get severe punishment.

Section 376 provides punishment for the offence of rape. It is important to know
that this Section imposes punishment with imprisonment of not less than 7 years which
may extent to ten years or even life imprisonment. Sections 375 and 376 have been
substantially changed by the Criminal Law (Amendment) Act, 1983.

2.5.1. Custodial Rape - Custodial Rape denotes a rape which occurs in a custodial
situation by the Government servant by abusing their official position. It did not find
mention in the original Indian Penal Code, but Supreme Court’s judgment in Mathura
rape case242 creates a situation which compels the legislature to include the offence of
custodial rape in Indian penal code.

Criminal Law (Amendment) Act 1983 has brought some important changes in the
Indian Penal Code, which are also in favour of rape victims. Several new sections have
been introduced and several old sections have been changed. Some sections even do not
come under the old definition of rape but are punishable now. Rape on any woman in a
custodial situation by a police officer, by a public servant, by a member of a management
of jail, remand home or other place of custody or by a member of a management or staff
of hospital is now punishable under section 376(2) with rigorous imprisonment for a
term which shall not be less than ten years but which may be for life. Sections 376A,
376B, 376C and 376D have also been introduced in the IPC by the Criminal Law
(Amendment) Act 1983 which are regarded as sexual offences not amounting to rape.
Thus these new sections were introduced with a view to stop sexual abuse of women by
any person of care and control in an advantageous position, even if the woman has
consented to it.

The Criminal Laws (Amendment) Act inserted section 114A to the Indian
Evidence Act to empower the court to draw a conclusive presumption regarding the
absence of consent of the woman alleged to have been raped. The Amendment Act 2003
inserted a proviso to section 146 of the Indian Evidence Act 1872 that in prosecution for

242
Tukaram V State of Maharashtra AIR 1979 SC 185)

98
rape, it shall not be permissible to put questions in the cross examination of the
prosecutrix with respect to general moral character. After detailed consultations with the
organisations, the Law Commission released its 172nd Report on the Review of Rape
Laws, in 2000. The Law Commission recommended changing the focus from rape to
`sexual assault', the definition of which goes beyond penile penetration to include
penetration by any part of the body and objects, taking into account cunnilingus and
fellatio.

However, the Supreme Court of India suggested for the establishment of

Criminal Injuries Compensation Board for the formulation of a scheme for awarding
compensation to rape victim on the basis of the sufferings and material loses under the
Directive Principals (Article 38) of the Indian Constitution.243

However, I would like to say that the effort of judiciary and legislature are not
very much encouraging towards the protection of the rape victims. The Govt.’s attitude is
conspicuous as it has ignored the humanistic instruction of the court and being lethargic
in considering the Law commission reports. Legislature has also not done its work by
making amendment of the flaws in the laws. In the words of Flavia Agnes, “Procedures
continued to be long and harrowing, the investigative machinery lax and corrupt, cross-
examinations of the victims degrading and humiliating and, contrary to expectations, the
statistics revealed an increase in reported cases and a dismal rate of conviction.”244

2.5.2. Marital Rape - In India the problem of marital rape has received very little
attention. Actually this type of violence is considered by Indian woman as a private
matter. There may be two reasons behind this neglect - (1) Indian women are very
conservative. (2) Social culture prohibits them to talk openly about the intimate behavior
by their partner. (3) Indian women are very much reluctant to punish their husband.
Actually, the view of Indian Penal Code in respect of marital rape is very liberal. Section
375 of I.P.C. says that if a man commits sexual intercourse with his wife against her will
or without her consent, and if the age of the wife is above 15 years, it is not rape. It also
says that if the age of the wife is between 12 to 15 years, the husband will get very
nominal punishment but, if the age of the wife is below 12 years, then husband will get
243
Delhi Domestic Working Women’s Forum vs. U.O.I. 1995 (1)SCC14
244
Flavia Agnes, “Feminist Jurisprudence: Contemporary Concerns”, Majlis, Bombay, 2003

99
punishment under section 376(1) of I.P.C. like others. Again, if the wife is living
separately from the husband under a decree of Judicial Separation and the husband
commits rape on her, he will get very nominal punishment under Section 376(1) of
Indian Penal Code, because once they were married partners and sexual intercourse was
common in-between them. Thus, I.P.C does not give much importance to the offence of
marital rape.

However, section 498A IPC 1860 can cover ‘marital rape’ as a form of cruelty by
the husband. Domestic Violence Act 2005 can also give relief to the rape victims. Now
Indian Judiciary, Parliament and Public should think whether anyone can perpetrate
violence, torture on other in the name of relationship.245

2.6. Offences relating to marriage - Sec 493 to 498 deal with the offences
relating to marriage which are as follows-
Under Section 493 of IPC, a man causes a woman to believe by deceit that there
is lawful marriage in-between them and cohabits with her under that impression is
punishable with a maximum imprisonment of ten years.

Main ingredients of this Section are (a) the accused cohabited with the victim by
deceit (b) the accused causes a false belief regarding the existence of legal marriage to
the victim (c) the victim had consented to cohabit believing that she had been lawfully
married to the offender. This offence may also be punished as rape under Section 375
(4). The offence is non-cognizable, but a warrant should ordinarily issue in the first
instance.

Section 494 of Indian Penal Code punishes a man or woman for marrying again
during the continuance of the first marriage with a maximum imprisonment of seven
years and also with fine. This offence is known as bigamy under the English law.
Monogamy is the rule for the Hindus, Christian and Parsis.246Polygamy is followed by
Muslims only. Therefore, Section 494 of IPC is not applicable to Muslims. Supreme

245
http://www.legalserviceindia.com/article/l263-Domestic-Violence-in-Marriage.html Last visited April
23rd 2012.
246
Santosh Kumar V. Surjit Singh 1990 Cr. 1., 1012 HP, S.C

100
Court in the case of Sarla Mudgal247 and in Lily Thomas248 has held that a Hindu male
whose first marriage was solemnized as per the Hindu rites and which is not dissolved
cannot contract a second marriage by converting himself into Islam. Same rule is also
applicable in case of Christian and Parsi. When a person apostate from Islam his
marriage comes to an end and the wife will not be guilty of bigamy if she goes through
second marriage.249 However, the Dissolution of Muslim Marriage Act 1939,
renunciation of Islam does not by itself operate to dissolve her marriage, after conversion
she would require to obtain a decree for the dissolution of her marriage on any one of the
grounds mentioned in the section 2 of the Act.

However, a person can marry for the second time during the subsistence of the
first marriage in the following cases - (a) If the other spouse is missing for a continuous
period of 7 years or more. (b) The whereabouts of the husband or wife has not been
heard of, by the other party as being alive within that time. In this context, it is pertinent
to remember that both the marriages must be valid one.

Section 495 of Indian Penal Code punishes the aggravated form of bigamy. It
provides that whoever contracts a subsequent marriage by concealing the former
marriage is punishable with maximum imprisonment of ten years. Section 496 of IPC
provides that a person, who goes through a marriage ceremony dishonestly and
fraudulently with the knowledge that he is not thereby lawfully married, is punishable
with maximum imprisonment of seven years.

Section 497 of the Indian Penal Code punishes a man having sexual intercourse
with a woman knowing that she is the wife of another man and without the consent or
connivance of such other man.

The main feature of this offence is that only the adulterer is punishable and not
the adulteress. Wife’s liability as an abettor has been expressly excluded by the section.
Even, the section 497 totally neglects the fact that adulteress should be heard. In Smt.

247
Sarla Mudgal vs. Union of India AIR 1995 SC 1513
248
Lily Thomas vs. Union of India AIR 2000 SC 1650
249
Karan Singh vs.Emp.AIR1933All433

101
Sowmithri Vishnu250case, S.C seized of the question of unconstitutionality of Section
497of IPC and affirmed its earlier view in Yusuf Abdul Aziz case251 that it does not
violate Articles 14 and 15 of the constitution of India on the ground that it makes an
irrational classification between men and women. S.C. observed that it is commonly
accepted that it is the man who is the seducer and not the woman. The circumstances
may have changed since the enactment of IPC ,but the sole prerogative is that of the
legislature to see as to whether the law requires any change and, if so, what, and then do
whatever it thinks should be done. The Court further observed that this section is also not
violative of Article 21 of the constitution because although this section does not contain
any provision for hearing of married woman, who is a party to the offence but if she
makes an application that she should be given opportunity of being heard. She would be
given that opportunity.

The Law commission of India252 recommended for the amendment of Section

497 in its present form with the modification that, even the wife who has sexual relation
with a person other than her husband should be made punishable for adultery.

Section 498 I.P.C. reads as enticing or taking away or detaining with criminal
intent a married woman and in that case the person who will detain any married woman
with criminal intent shall be punished with imprisonment of either description which
may extend to two (2) years with fine or with both.

In order to combat the increasing incidents of torture of women in the

matrimonial home by their husbands and relatives, Section 498-A IPC was introduced by
Criminal Law (2nd Amendment) Act 1983.This section extends protection to the ill-fated
wife during her stay in the matrimonial home.

2.7. Cruelty - Section 498A of IPC reads Cruelty as if 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.

250
Sowmithri Vishnu V. Union of India and another 1985 Cr. L., 1302 SC
251
Yusuf Abdul Aziz v.State 1954 Cr L.J886 SC

252
The Law commission of India 42nd Report, 1971

102
For the purpose of this section, “cruelty” means (a) Any willful 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 valuable security
or is on account of failure by her or any person related to her to meet such demand. The
meaning of the word ‘harass’253 is to subject someone to continuous vexatious attacks,
questions, demands or other unpleasantness.

The Supreme Court held254 that these two Sections (Sections 304B and 498A) are
not mutually exclusive and in cases of dowry death both from the point of view of
practice and procedure and to avoid technical defects, charges under both the Section
should be framed. And in the absence of any explanation under Section 304B about the
meaning of cruelty, the meaning of cruelty and harassment has to be taken as the same as
in the explanation to Section 498A of IPC.

Finally, the Criminal Laws Second (Amendment) Act, 1983 inserted Section
113A in the Indian Evidence Act, which empowers the court to presume ‘dowry death’
under situation when it is proved that soon before the death of a woman she was
subjected to dowry related cruelty or harassment.

According to explanation (b) to the Section 498-A I.P.C., it is not every

harassment of a woman by the husband or his relatives that amounts to cruelty; but it
should be with definite object namely coerce the woman or any person related to her to
meet any unlawful demand or it should be on account of failure on her part or any person
related to her to meet such demand.255 However, the initial burden lies on the prosecution
to prove that the woman was subjected to cruelty soon before her death.256 The offence
under Section 498-A of IPC is non compoundable and non-bailable.

Abuse of the law - However, though the section is enacted to protect women from the
dowry related cruelty but, it is abused and misused in a rampant way in the hands of
253
www.websters-online-dictionary.org/Last visited on April 27th 2012
254
Shanti vs State of Haryana AIR1991 S.C.1226
255
Ravindra Pyarelal Bidlan v. State of Maharashtra, 1993 Cr LJ 3019 (Bom)
256
State of west Bengal v. Orilal Jaiswal,(1994) 1SCC 73,

103
some unscrupulous people as a weapon to fulfill their unjustified demands. The abuse of
the law is recognized by the S.C., W.H.O., The Law Commission of India and Centre for
Social Research etc. In Sushil Kumar Sharma case, S.C. said that “it is for the
legislature to find the ways on how to deal with misuses of this law as well as on how to
wipe out the ignominies suffered during and after the trial by the falsely accused.”257 In
August, 2010, SC asked the Govt. of India to amend the dowry laws to prevent its
misuse.

Section 498A is regarded as a shield to a woman, who is a victim of cruelty in the

matrimonial home. But, the question is whether it is really a shield? The provision is
neither preventive nor compensatory. It gives remedy to those women, who want to take
revenge against their husband and in-laws by arresting them. In case of women, who
want to continue their marriage tie, it is not a proper remedy, because, after arrest,
husband and in-laws do not show any interest in the bride and seek divorce. Thus, most
of the women show reluctance to approach the Court or to go to the police for filing FIR.
The section can only apprehend the husband and in-laws regarding the fact that if the
woman files an FIR or move the Court they can be arrested, otherwise it has no utility.

3. Special Laws - There are many special laws to deal with the crime against

women specifically. These laws are enacted by the statute to prevent and control any
specific type of crime. Thus, it covers every issue in detail. These Acts describe and
prohibit certain kinds of activities and also impose punishment for the violation of the
provisions of the Acts.

3.1. Child Marriage Restraint Act 1929 - Child marriage is the most important
social evil in India. It is deep rooted and causes injury to the children specially the girl
child. The Indian Constitution ensures equality, liberty, protection and opportunity to all.
During the British period many customary practice of different communities had been
challenged by our reformer and hence the Child Marriage Restraint Act was passed in
1929.This was amended in 1949. Under the Act, child is a person who, if male has not
completed 21 years of age and if female has not completed 18 years of age. The Act

257
Sushil Kumar Sharma v. U.O.I And Others 2005 SC 266

104
prohibits marriage below that age. However, child marriages are valid under all personal
laws except for the Parsis and under the Special Marriage Act. The Hindu Marriage Act
gives option to the minor girl to repudiate the marriage if she was below 15 years but this
has to be done before she reaches 18 years of age. Generally, girls would not go against
their parents or guardian and thus the cases of repudiation of marriage do not arise. It is
not possible for a child to form an intelligent opinion about her marriage partner in life. It
has many direct factors like causing early motherhood, maternal mortality, giving birth
of a unhealthy child and indirectly it causes anguish, weakness, desertion, destitution etc.
The girl child under Muslim law can repudiate the child marriage, when she attains the
age of puberty, roughly 15 years. Even under the Christian law, the marriage below the
age of consent is valid if it is done with the consent of the guardian. Parent or guardians
are liable to be punished under the Act for the violation of the provisions of the Act. It is
a cognizable offence only under specified conditions. The courts do not have the power
to pass ex-parte injunction; The Child Marriage Restraint Act is applicable to all Indians
irrespective of their religion.

To prevent child marriage our government and judiciary should take some
measures like registration of marriages should be made compulsory, personal law should
be amended to declare all marriages as void if it occurs in contravention of Child
Marriage Restraint Act. The courts should not allow any relief in respect of marriages
celebrated in contravention of the Child Marriage Restraint Act. It is also the duty of our
Govt. to make people aware of the most terrible factors of the child marriage. To stop the
flagrant violation of laws, the judiciary should take serious note of the fact of child
marriages and punish the officials whose responsibility it is to implement the laws in
strict hand. Legislature should adopt innovative and preventive strategies for the strict
enforcement procedure and for proper implementation.

3.2. Immoral Traffic (prevention) Act 1956 - The main legislative tool for
combating trafficking in persons in India is the immoral Traffic (prevention) Act of 1956
(ITPA) which was amended again in 1986. The amended Act widened the scope of the
law to cover both the sexes male and female exploited sexually for commercial purposes
and provided inter alia, enhanced penalties for offences involving children and minors.

105
 However, in the Immoral Traffic (prevention) Act, 1956 certain drastic
amendments are introduced by the Amendment Acts of 46 of 1978 and 44 of 1986. The
aim of the Act is to suppress the evils of prostitution in women and girls and to rescue
the fallen women and girls and to provide opportunity them so that they could become
decent members of the society.

The Act prohibits running of brothel and makes it a punishable offence. Even if
any person acts or assists in the keeping or managing of brothel will also be punished.
So, any persons, being the owner, lessor, or landlord of any premises or being the tenant,
lessee, occupier or person in charge of any premises with the knowledge uses or allows
any other person to use such premises or any part thereof as brothel.258 Act also punished
those persons who are living with the knowledge on the earnings of the prostitution with
imprisonment of 2 years and also with fine up to Rs.1000. But the age of the person must
be above 18 years. However, if such earning relates to the prostitution of child or a minor
punishment can be extended up to 7 years of imprisonment. The procuration for the
purpose of prostitution is prohibited. It says if any person procures or attempts to procure
for the purpose of prostitution or induces or takes or attempt to take or causes a person to
go from any place with the intention that he / she may be used for the purpose of
prostitution or to carry on prostitution will be punished with the imprisonment for a term
of not less three years but can be extended up to 7 years. And if the act is done against
the will of the person punishment can be extended up to fourteen years of imprisonment.
And if the offence is committed against a child, punishment can be extended up to life
imprisonment but not less than seven years. And if the offence is committed against a
minor, punishment can be extended up to imprisonment of 14 years but not less than
seven years.259

If any person detains any other person in any brothel or in any premises with
interest that such person may have sexual intercourse with a person who is not the spouse
of such person will be punished with imprisonment which must not be less than seven
years but may be for ten years or for life.260 In this context it is very important to point
out that if any person is found with a child in a brothel, the court shall presume that he

258
Section 3, ITA 1956
259
Section 5, ITA 1956
260
Section 6(1), ITA 1956

106
has committed the above offence unless the contrary is proved. However, if a child or
minor is found in brothel and on medical examination it is detected that she/he have been
sexually abused the law shall presume that the child or minor has been detained there for
the purpose of prostitution or has been sexually exploited for the purpose of prostitution,
unless the contrary is proved.261

The Act does not permit to carry on of prostitution in any premises within a
distance of 200 meters from any place of public religious worship, educational
institution, hostel, hospital, nursing home or public place of any kind. The act of
seducing or soliciting for prostitution is a penal offence under the Act. It says if any
person seduces or solicits for the purpose of prostitution in any public place or within
sight of it. Here the act of soliciting may be by any communicable from like words
gestures, willful exposure of her person or otherwise tempting any person for prostitution
offender will be punished with imprisoned which can be extended up to three months to
one year and with fine of Rs.500 in different cases. Seduction by any person having the
custody, charge or care of or in a position of authority over any person is also a
punishable offence under the Act. And the offender will be punished with the
imprisonment of which can be extended to ten years or for life but not less than seven
years.

However, court may for adequate and special reasons impose a sentence of
imprisonment for a term of less than seven years and also with fine.262 A female offender
found guilty of an offence of carrying on prostitution at a public place etc. may be
ordered to be detained in a corrective institute for a term not less than 2 years and not
more than 5 years.263

The Supreme Court delivered a judgment of far reaching circumstances,

pertaining to the rescue and rehabilitation of prostitutes and also their children.264

261
Section 6(2), ITA 1956
262
Section 9 Immoral Traffic (prevention) Act 1956
263
Section 10 A Immoral Traffic (prevention) Act 1956
264
Gaurav Jain vs. Union of India 1997 (8) SCC 114

107
3.3. Maternity Benefit Act 1961 - Article 42 of the Indian constitution empowers
the state to make provisions for securing just and humane conditions of work and for
maternity relief. And accordingly the parliament has passed the Maternity Benefit Act
1961 to regulate the employment of women in certain establishment for certain periods
before and after child birth and to provide for maternity and other benefits.

Applicability of the Act is very wide to include every establishment being a

factory, mine or plantation and any other establishment where persons are employed for
the exhibition of equestrian acrobatic and other performances. This is also applicable to
every shop, establishment in which ten or more persons are employed on any day of the
preceding 12 months The State Government is empowered to apply the provisions of this
Act to any other establishment whether industrial commercial, agricultural or otherwise
by giving a notice of not less than 2 months.

Under Sec. 5(1) of the Act every woman is entitled to the payment of maternity
benefit at the rate of average daily wage for the period of her actual absence that is the
period immediately before the delivery, at the day of delivery and immediately after
delivery.

And a woman is entitled to claim the benefit of the Act only when she has
actually worked in any establishment at least for the period of 80 days in the 12 months
immediately preceding the date of expected delivery.265 In Female Workers Muster Roll
case266 Supreme Court declared that not only the regular woman employees but also
those woman employers engaged on casual basis or on muster roll on daily wage basis
are entitled to get relief under Maternity Benefit Act 1961.

The maximum period for which a woman is entitled to get maternity benefit is 12
weeks of which maximum 6 weeks shall be before the expected date of delivery. 267

In the case of death of the women either during or after her delivery employer is
bound to give the maternity benefit of the entire period. However, if the child dies within

265
Section 5(2) Maternity Benefit Act, 1961
266
Municipal Corporation of Delhi v. Female Workers Muster Roll (2000) 3 Sec. 224
267
Section 5(3) Maternity Benefit Act, 1961

108
that period employer is liable to pay the maternity benefit only for the period up to and
including the date of the death of the child.

Prohibition of Employment - The Maternity Benefit Act 1961 prohibits

employment of the woman before or after the expected date of delivery under certain
circumstances like no woman who delivers a child or who undergoes medical
termination of Pregnancy or miscarriage shall be employed during the six weeks
immediately following the date of such a movement. No pregnant woman is required to
do any work which is laborious in nature or which involves long hours of standing or
which in any way interferes with her Pregnancy or the normal development of the foetus
or likely to pass her miscarriage or adversely affect her health. The benefit under
Maternity Benefit Act includes the benefit for Medical Termination of Pregnancy under
the provision of Medical Termination of Pregnancy Act 1971 so the case of abortion is
also covered by the Act268. A woman employee is entitled to claim the benefit of the
Maternity Benefit Act, 1961, if she suffers from any illness arising out of Pregnancy
delivery, Pre-mature birth of a child miscarriage, medical termination of Pregnancy or
tubectomy operation etc. A woman who returns to join her duty after delivery is entitled
to two breaks in the course of her daily duty until the child attains the age of 15 months
for the purpose of nursing the child a for the rest of that woman. And each of the two
breaks shall be of 15 minutes duration. A woman who is absent from her work in
accordance with the provisions of this Act, her employer cannot discharge or dismiss her
during or due to such absence.269

If any employer violates any of the provisions of this Act or denies giving any
amount of maternity benefit to any woman, he is liable to be punished with a minimum
imprisonment of three months but which may be extended to one year and also with fine.

3.4 Dowry prohibition Act 1961 - Dowry is a strongly embedded social custom or
practice, which becomes a curse for our society. It is considered as the most pervasive
social evil in our society. Primarily, the practice of dowry was rampant only among the
Hindus but now-a- days it is being observed by almost all the communities.

268
Maternity Benefit (Amendment Act), 1995
269
Sec.12, Maternity Benefit Act, 1961

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 The Dowry Prohibition Act, 1961 was enacted to curb the growing menace of
dowry and make the offence of dowry punishable not only for the actual receiving but
also for the demand of dowry made at the time of marriage, after the marriage or before
the marriage.

The Statements, Objects and Reasons for enactment of the legislation are
described in the Act as “The object of this Bill is to prohibit the evil practice of giving
and taking of dowry. This question has been engaging the attention of the Government
for some time past, and one of the methods by which this problem, which is essentially a
social one, was sought to be tackled by the conferment of improved property rights on
women by the Hindu Succession Act, 1956. It is however, felt that a law which makes
the practice punishable and at the same time ensures that any dowry, if given, does
ensure for the benefit of the wife will go a long way to educating public opinion and to
the eradication of this evil. There has also been a persistent demand for such a law both
in and outside Parliament.”

The Act was further amended vide Act No. 43 of 1986. The Legislature while
providing for the definition of ‘dowry’ has emphasized that any money, property or
valuable security given as consideration for marriage before, at or any time after the
marriage would be covered by the expression ‘dowry’, and this definition as contained in
Section 2 of the Act has to be read whenever the expression ‘dowry’ occurs in the Act.
Under Section 3 of the Act, if a person gives or takes or abets the giving or taking dowry
shall be punished. Under Section 4 of the Act mere demand of dowry is sufficient to
constitute the offence under the Act. Thus, any demand of money, property or valuable
security, made from the bride or her parents or other relatives, or the bridegroom or his
parents or other relatives, or vice versa, would fall within the definition of dowry under
the Act.

The amended Act also includes that (a) the minimum punishment for taking or
abetment to take dowry has been raised to five years and a fine of rupees fifteen
thousand.270 (b) The burden of proving that there was no demand or dowry will be on the
person who takes or abets the taking of dowry. (c) The statement made by the person

270
Section 3 of the Dowry Prohibition Act, 1961

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aggrieved by the offence shall not subject him to prosecution under the Act. (d) Any
advertisement in any newspaper, periodical, journal or any other media by any person
offering any share in his property or any money in consideration of the marriage of his
son or daughter is proposed to be banned and the person giving such advertisement and
the printer or publisher of such advertisement will be liable for punishment with
imprisonment of six months to five years or with fine up to fifteen thousand rupees. (e)
Offences under the Act are made non-bailable. (f) Provision has also been made for
appointment of Dowry Prohibition Officers by the State Government for the effective
implementation of the Act. The Dowry Prohibition Officers will be assisted by the
Advisory Boards consisting of not more than five social welfare workers (out of whom at
least two shall be women).

The Act was amended in 1984 and 1986 to make it more effective. The Dowry
Prohibition (Amendment) Act, 1984 has made the meaning of ‘dowry’ wider. Under the
Act, more severe punishment is prescribed for the dowry offenders. It has made some
changes in the definition of dowry also. The words ‘in connection with the marriage’
have been substituted in place of ‘as consideration of marriage’, to include three
occasions related to dowry. This means giving or agreeing to give any property or
valuable security before the marriage, at the time of marriage and at any time after the
marriage. But such giving and taking must be in connection with the marriage of the
parties.271 The Dowry Prohibition (Amendment) Act 1986 further enhanced the
punishment for the dowry offenders. It also inserted a new section 113B in the Indian
Evidence Act. To eradicate the evil of dowry death, Section 304B was inserted in the
Indian Penal Code. And to combat the increasing incidents of torture of women by their
husbands and in-laws in their matrimonial home with a view to compel her or her
relatives to satisfy any unjustified demands, a new section 498A was introduced in the
Indian Penal Code by the Criminal Laws (Second Amendment) Act, 1983 (Act 46 of
1983), as a supplementary Section of Section 304B of Indian Penal Code.

Finally, the Criminal Laws Second (Amendment) Act 1983 also inserted Section
113A in the Indian Evidence Act, which empowers the court to presume ‘dowry death’

271
Satvir Singh and others vs. State of Punjab AIR 2001, SC 2828.

111
under situation when it is proved that soon before the death of a woman she was
subjected to dowry related cruelty or harassment. Similarly, Dowry Prohibition
(Amendment) Act 1986 inserted Section 113B in the Indian Evidence Act, which
empowers the court to presume in dowry death cases that the accused is guilty unless he
can prove otherwise. Section 174 of the criminal procedure code is also amended to
make the postmortem compulsory in dowry death cases. The National Commission for
women was also set up for looking after the women related matter. Despite all these
efforts, the practice of dowry is flourishing day by day with its various effects. Our Govt.
has come up with multiple legislations to prevent this evil, but this shameful practice is
still continuing.

In addition to the legislative effort, awareness of the people regarding the evil
effect of dowry is necessary to curb dowry. So long the entire society does not believe
that dowry is an evil and objects to the demand for dowry, and refuses to give dowry, the
evils of dowry will raise its head in society. The amendments Act introduced several
changes in the law to make the offence of dowry or cruelty against women stringent but,
dowry related torture, dowry death are increasing day by day. To make the law effectual,
people should be responsive of the law. 272

3.5. Medical Termination of Pregnancy Act 1971 - In 1971, India liberalized

its abortion law by enacting the Medical Termination of Pregnancy Act. The Act consists
of only 8 Sections. However, the specialty of the Act is that it has modified the strict
provisions of the Indian Penal Code by permitting abortion in a number of situations.
The Act envisages that the termination of a Pregnancy involves a risk to life of a
pregnant woman or a risk of grave injury to her physical or mental health. The Act
allows abortion under the circumstances when (1) even when mother’s life is not
threatened but continued pregnancy will cause damage to her mental or physical health.
(2)The termination of a pregnancy is not an offence. If there is a substantial risk that if
the child were born, it would suffer from some physical or mental abnormalities so as to
be seriously handicapped. (3)The termination of Pregnancy would not be an offence, if
the pregnancy is caused by rape. (4) The termination of a pregnancy is not an offence if

272
http://www. wcd.nic.in/research/directory%20of%20sc-hc%20judgements.doc Last visited on 20th April
2012

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the pregnancy is the result of the failure of any device or method used by the married
couple for the purpose of limiting the number of children.

However, Section 3(4) of the Act specifically provides that the Pregnancy of a
woman who has not attained the age of 18 years can’t be terminated except with the
written consent of her guardian similarly if the pregnant woman is above 18 years of age
and is lunatic, then also the written consent of her guardian is essential.273

In every case of medical termination of Pregnancy, the consent of the pregnant

woman is absolutely essential However, if the pregnant woman is a minor or a major but
lunatic, then the written consent of the guardian of such woman is essential.

Under the Act, A medical termination of Pregnancy can be made only at a

hospital established or maintained by the Government or at other places approved for
that purpose by the Government. Therefore the termination of pregnancy may be carried
out only at a hospital which is fully equipped with all the medical facilities.274

3.6. The Indecent Representation of Women (Prohibition) Act, 1986 -

The aim of the Act is to prohibit indecent representation of women through
advertisements or in publications, writings, paintings, figures or in any other manner and
for matters connected therewith or incidental thereto. This Act is called the Indecent
Representation of Women (Prohibition) Act, 1986. It extends to the whole of India,
except the State of Jammu and Kashmir. However, under the Act ‘indecent
representation of women’ means the depiction in any manner of the figure of a woman,
her form or body or any part thereof in such a way as to have the effect of being
indecent, or derogatory to, or denigrating, women, or is likely to deprave, corrupt or
injure the public morality or morals.

The Act says that no person shall publish, or cause to be published, or arrange or
take part in the publication or exhibition of, any advertisement which contains indecent
representation of women in any form.275It also prohibits to produce or cause to be

273
Rule 3(4) MTPA,1971
274
Section 4 MTPA, 1971
275
Section 3, the Indecent Representation of Women (Prohibition) Act, 1986

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produced, sell, let to hire, distribute, circulate or send by post any book, pamphlet, paper,
slide, film, writing, drawing, painting, photograph, representation or figure which
contains indecent representation of women in any form: Provided that nothing in this
section shall apply to- (a) any book, pamphlet, paper, slide, film, writing, drawing,
painting, photograph, representation or figure-(i) the publication of which is proved to be
justified as being for the public good on the ground that such book, pamphlet, paper,
slide, film, writing, drawing, painting, photograph, representation or figure is in the
interest of science, literature, art, or learning or other objects of general concern; or (ii)
which is kept or used bona fide for religious purposes; (b) any representation sculptured,
engraved, painted or otherwise represented on or in-(i) any ancient monument within the
meaning of the Ancient Monument and Archaeological Sites and Remains Act, 1958; or
(ii) any temple, or on any car used for the conveyance or idols, or kept or used for any
religious purpose; (c) any film in respect of which the provisions of Part II of the
Cinematograph Act, 1952 will be applicable.276

Any Gazetted Officer authorized by the State Government may, within the local
limits of the area for which he is so authorized can (a) enter and search at all reasonable
times any place in which he has reason to believe that an offence under this Act has been
or is being committed; (b) seize any advertisement or any book or any other thing, which
he has reason to believe contravenes any of the provisions of this Act; (c) examine any
document or any other material object found in the above mentioned place and seize the
same if he has reason to believe that it may furnish evidence of the commission of an
offence punishable under this Act. The provisions of the Code of Criminal Procedure,
1973, shall apply to any search or seizure under this Act. Where any person seizes
anything according to the provision of the Act, he shall, as soon as may be, inform the
nearest Magistrate and take his orders as to the custody thereof.277

However, for the contravention of the section 3 or section 4, the offender will be
punished with imprisonment of either description for a term which may extend to two
years, and with fine which may extend to two thousand rupees, and for the subsequent
contravention with imprisonment for a term of not less than six months but which may

276
Section 4, the Indecent Representation of Women (Prohibition) Act, 1986
277
Section 5, the Indecent Representation of Women (Prohibition) Act, 1986

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extend to five years and also with a fine not less than ten thousand rupees but which may
extend to one lakh rupees.278

Where an offence under this Act has been committed by a company, every
person, who, at the time the offence was committed, was in charge of, and was
responsible to, the company for the conduct of the business of the company. But, no suit,
prosecution or other legal proceeding shall lie against the Central Government or any
State Government or any officer of the Central Government or any State Government for
anything which is in good faith done or intended to be done under this Act.279The Central
Government may make rules to carry out the provisions of this Act.

3.7. The Commission of Sati (prevention) Act, 1987 - The Act is to provide
for the more effective prevention of the commission of sati and its glorification and for
matters connected therewith or incidental thereto. This Act is called the Commission of
Sati (Prevention) Act, 1987. It extends to the whole of India except the State of Jammu
and Kashmir.

Under the Act the ‘glorification’ in relation to sati, means whether such sati, was
committed before or after the commencement of this Act, includes, among other things,
the observance of any ceremony or the taking out of a procession in connection with the
commission of sati; or the supporting, justifying or propagating the practice of sati in any
manner; or the arranging of any function to eulogies the person who has committed sati;
or the creation of a trust, or the collection of funds, or the construction of temple or other
structure or the carrying on of any form of worship or the performance of any ceremony
thereat, with a view to perpetuate the honour of, or to preserve the memory of, a person
who has committed sati; The Act defines ‘sati’ as a means the burning or burying alive
of any widow along with the body of her deceased husband or any other relative or with
any article, object or thing associated with the husband or such relative; or any woman
along with the body of any of her relatives, irrespective of whether such burning or
burying is claimed to be voluntary on the part of the widow or the women or other-wise.

278
Section 6, the Commission of Sati (Prevention) Act, 1987
279
Section 9, the Commission of Sati (Prevention) Act, 1987

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 If any person attempts to commit sati and does any act towards such commission
shall be punishable with imprisonment for a term which may extend to one year or with
fine or with both.280 However, the Special Court trying an offence under this section
shall, before convicting any person, take into consideration the circumstances leading to
the commission of the offence, the act committed, the state of mind of the person charge
of the offence at the time of the commission of the act and all other relevant factors.

If any person abets the commission of such sati, either directly or indirectly, shall
be punishable with death or imprisonment for life and shall also be liable to fine. It
includes the act of any inducement to a widow or woman to get her burnt or buried alive
along with the body of her deceased husband.

If any person does any act for the glorification of sati shall be punishable with
imprisonment for a term which shall not be less than one year but which may extend to
seven years and with fine which shall not be less than five thousand rupees but which
may extend to thirty thousand rupees.

Every Collector or District Magistrate acting under sub-section (1) shall report
the seizure to the Special Court, if any, constituted to try any offence in relation to which
such funds or property were collected or acquired and shall await the orders of such
Special Court as to the disposal of the same.

All offences under this Act shall be triable only by a Special Court constituted
under this section. The State Government shall, by notification in the official Gazette,
constitute one or more Special Courts for the trial of offences under this Act.

The burden of proving that he had not committed the offence under the said Act
shall be on the accused.281 All officers of Government are hereby required and
empowered to assist the police in the execution of the provisions of this Act or any rule
or order made there under.

280
Section 3 the Commission of Sati (Prevention) Act, 1987
281
Section 16 the Commission of Sati (Prevention) Act, 1987

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 A person convicted of an offence under sub-section (1) of Sec. 4 in relation to the
commission of sati shall be disqualified from inheriting the property of the person in
respect of whom such sati has been committed or the property of any other person which
he would have been entitled to inherit on the death of person in respect of whom such
sati has been committed.282

3.8. Prenatal Diagnostic Techniques (Regulation and prevention of

Misuse) Act 1994 - Parliament has realized the grave implications arising out of the
misuse of the prenatal diagnostic techniques and therefore intended to regulate its use
only for certain medical purposes The Government has realized that abuse of techniques
for determination of sex of the foetus leading to female feticide is discriminatory against
the female sex and also affects the dignity and status of women. With the above
objectives, the parliament has passed the pre-natal Diagnostic Techniques (Regulation
and prevention of Misuse) Act 1994, which came into force from 1-1-1996.

This Act provides for the regulation of the use of pre-natal diagnostic techniques
for the purpose of detecting genetic or metabolic disorders or chromosomal
abnormalities or certain congenital malformation or sex - linked disorders and for the
prevention of the misuse of such techniques for the purpose of pre-natal sex
determination leading to female foeticide.

However, the main Provisions of the PNDT Act. are - (1) Prohibition of the
misuse of prenatal diagnostic techniques for determination of the sex of the foetus
leading to female foeticide.(2) Prohibition of advertisement of prenatal diagnostic
techniques for detection or determination of sex.(3) Permission and regulation of the use
of prenatal diagnostic techniques for the purpose of specific genetic abnormalities or
disorders.(4) Permitting the use of such techniques only under certain conditions by
registered institutions.(5) Under no circumstances are these techniques to be used to
determine the sex of the foetus .(6) No person conducting prenatal diagnostic procedure
(S.4) shall communicate to the pregnant woman concerned or her relatives the sex of the
foetus by words, signs or in any other manner.(7) Punishment for violation of the

282
Section 18, the Commission of Sati (Prevention) Act, 1987

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provisions of the Act. (3 years imprisonment and/or Rs.10,000/- fine for the first charge,
this increasing to Rs. 50,000 fine and 5 years imprisonment for the second conviction).

Supreme Court is very serious regarding the effect of pre-delivery sex selection
techniques and directed the Govt. to pass legislation in this regard.283 The directives
given by the Court needs to be followed up. At the same time a system should be
introduced for the proper mechanism to prevent pre-sex-selection tests and misuse of
MTP Act. As we know that foeticide and infanticide are directly related to dowry and
child marriages, so, we have to look after the matter more seriously.

3.9. Domestic Violence Act 2005 - Despite the existence of these legislations, the
laws relating to domestic violence were inadequate. Actually most of the provisions are
applicable to valid marriages only. Though criminal law prosecuted and punished the
perpetrator of domestic violence, but the matters relating to the women’s requirement for
shelter, maintenance, custody of children and compensation linger untouched.
Compromise is not possible under Criminal law. The matrimonial disputes generally
solved through lengthy legal process under other legislation but, it gives quick relief to
the victim. There was no law which empowers the courts to issue orders and injunctions
restraining domestic violence or to give monetary relief to the aggrieved women.
Domestic violence was not treated as an independent offence. Women had to move
towards different courts for different remedies and no law for so long time recognizes
women’s right to residence in their matrimonial homes which this law does.284

This act is no doubt exceptional in many respects. It gives quick relief to the
victim. This act gives a broad meaning to a domestic relationship and aggrieved persons.
Violence in a “live in relationship” has also been recognized under the Domestic
Violence Act.

The Act aims to liberate the life of women from domestic violence. Domestic
violence is regarded as the violation of human rights of women under the Act. It is a
comprehensive law and includes all aspects related to women. In addition to physical

283
Sehat and ors Vs. Union of India 1981 UPTC, 702
284
http://www.legalserviceindia.com/.../l194-Protection-of-Women-from-Domestic-Violence-Act,-
2005.html Last visited on 24May 2012

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violence of beating, slapping, hitting, kicking and pushing, the Act also covers sexual,
mental, emotional and economic violence and child sexual abuse. It also ensures the right
of women to reside in the matrimonial home and protect her from becoming an
impecunious.285 This Act provides a single and speedy remedy system where multiple
needs for a woman can be addressed through a single litigation in a court. This Act also
introduced many support system for the victim through shelter, counseling and medical
support by giving protection order, residence order, custody order etc. The remedy under
this law is available as an additional protection with other existing matrimonial and
criminal law on domestic violence not in derogation of any other law.286

287
In Vandana case Court said that “From the development of the law on the
point, over the years, culminating in the aforesaid enactment, it appears, that the right of
a woman to live in the shared household, originally conceived as a part of her right to
maintenance, has enlarged with the advent of the Act.” It suggests the passing of
protective and ameliorative orders of civil Courts, calculated to preserve the status quo
for the benefit of women.288 Section 17 introduces the right of every woman in a
domestic relationship to reside in the shared household, whether or not she has any right,
title or beneficial interest in the same. Domestic Violence has been defined in a wide
way. It includes mental, physical, sexual, verbal and economic abuse. Dowry related
harassment and torture for unlawful demands of dowry is also included within the
definition. The concept of domestic violence has been extended from physical hurt to
emotional shock and to economic exploitation. It protects a wife from sexual abuse by
her husband.

This law gives protection to women who are in “live-in-relationship”. This is a

revolutionary protection as it is against the traditional concept of marriage and earlier
court verdict, which state that long periods of cohabitation between a man and a woman
raise a presumption of marriage. “The Act applies even when there is consensual sex
between a man and woman, without promise of marriage. They can be said to be in a
‘Domestic relationship.’“A man must not be allowed to take the advantage of his own
wrongs and defeat the rights of a woman in good faith, not knowing the existence of the

285
Section 17 of PWDVA
286
See Supra note 284 at p.118
287
Vandana vs. Mrs. Jasyanti Krishnamachari & Others (2007) 6 MLJ 205 (Mad)
288
Section 18 of PWDVA

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first marriage. The second wife must be afforded protection from violence within the
home.289

The Constitutional validity of this law has been challenged in courts of law on the
ground that the law is biased, as it gives special right to women to file the case. However, the
Court said “Giving certain preferential treatment to the wife and treating them as a special
category cannot be termed as violation of either Article 14 or Article 16 of the Constitution
of India. Though Article 15 of the Constitution of India Prohibits discrimination on grounds
of religion, race, caste, sex or place of birth, however, Article 15(3) states “nothing in this
Article shall prevent the State from making any special provision for women and children”.
Thus, the Constitution itself provides special provision for women and children. It has been
widely resorted to and the Courts have upheld the validity of the special measures in
legislation and executive orders favouring women. Thus, when the Constitution itself
provides for making special provision for women and children, the contention on the side of
the petitioners that there could be no special treatment for women is totally untenable”.290

Indian society prefers to wrap the matter of domestic violence in secret with a
deep sense of humiliation. Indian women do not like to make it public because of shame
and family prestige. Unfortunately, this attitude vitiates the whole purpose of the
legislation. Though, Research Report repeatedly proved that domestic violence is one of
the few issues, which crosses all the boundaries. But, the law combating domestic
violence is not implemented properly due to the hesitant approach of the women to move
the court. Judicial records show that the conviction rates in cases of domestic violence
are very low. Attitudes of the society with regard to domestic violence should be
changed completely and for that purpose community-based initiatives should be
developed.

We have to make a structure within which compromise with the perpetrators of

domestic violence would be possible out of formal courts as our aim is not to punish the
perpetrator but to get justice for the sufferer.291

289
M. Palani vs. Meenakshi, Judgment of the High Court of Chennai on 27 February 2008.
290
Dennison Paulraj & Others vs. Union of India, (2008) 2 MLJ 389:
291
Domestic Violence in India by Nandita Saikia;-source www.vedamsbooks.com/.../indian-women-
sociolegal-perspective-nandita-saikia

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 In spite of the existence of numerous protective legislations at the national level,
crime against women is increasing day by day. Women continue to be victims of
violence, exploitation, discrimination and torture. Women are easy prey to the criminals
from the mother’s womb till graveyard. In respect of the status of women in India, there
is a gap between the theoretical possibilities and their actual realization.292 The identified
loophole should be removed with utmost sincerity.

PART –III
Women Protection under Personal Laws

Being a cosmopolitan country India allows its citizen to follow their own
personal laws. Different religious communities like Hindu, Muslim, Christian, Parsees
co-exist with each other as a part of this country. They practice their own personal laws
in the matter of marriage, divorce, adoption, guardianship, succession etc. The reason is
that social custom, behaviour, rituals of such religious communities hugely depends on
their religions. Indian constitution also empowers them to follow their customary laws
which they have been following since time immemorial. Though lack of uniformity in
laws is a stumbling block for the growth of the nation like India, but it is also not
possible for the legislature or judiciary to strike down such laws by hampering the age-
old feelings of such communities.293

1.Law relating to marriage and divorce - Marriage is a venture of two

individuals, whose life is enriched and enhanced by the love and company of each other.
It is all about the understanding and respecting each other's feelings and privacy. The
institution of Marriage has great importance in our society. It is regarded as the most
solemn engagement. It not only benefits the procreation of human races, but also controls
the moral order of the society.

In India, the matters relating to marriage were governed by the personal law of
each religious community. The pre independent enactments relating to marriage and

292
http://www.csss-isla.com/Status_report.pdf Last visited on 20th May,2012
293
http://www.lawisgreek.com

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divorce are Indian Divorce Act, 1869, the child Marriage Restraint Act, 1929, the
Dissolution of Muslim Marriage Act, 1939 and the Parsee Marriage and Divorce Act,
1936. However, after independence the parliament of India enacted The Special
Marriage Act, 1954 and The Hindu Marriage Act, 1955.

1.1 Hindu Law - According to the tenets of Hinduism, marriage is a sacrament, the
most important transitional point in a Hindu’s life and the most important of all the
Hindu samskaras.294However, several legislations relating to women were enacted during
pre-independence period.

Hindu Marriage Act 1955 is the first codified Hindu Law after independence.
However, the Act amended and codified the old Hindu law relating to marriage. It makes
the Hindu marriage more secular and liberal. It discusses every aspect of Hindu marriage
like valid form of marriage, ceremonies, registration, legitimacy of children, nullity of
marriage and divorce etc. The essential conditions for valid marriage are monogamy,
soundness of mind, the minimum age for marriage i.e. 18 & 21 years for a girl and a boy
respectively. The parties to the marriage must not be within the prohibited degrees of
relationship, Parties are not sapindas to each other etc.295

Registration of Hindu marriage is not compulsory under Hindu Marriage Act

1955, but the Act provides the facility for registration of marriage. Seetion 8 of the Act
lays down that State Governments may make rules for registration of marriage and can
make those rules compulsory. But failure to register a Hindu marriage shall in no way,
affect its validity.296 However, in Ashwani Kumar297 case, Supreme Court held that the
registration of marriage falls within the ambit of expression “Vital statistics” as provided
in Entry 30 list 3 Section 7 of the constitution of India. Therefore marriage of all citizens
of India belonging to various religions should be made compulsorily registrable in the
states where they are solemnized. The State Governments shall initiate action for rule-
making in this regard. Hence all marriages, in whatever form they are performed should
be registered to save women from harassment and hence the desirability to have such a

294
Menski, Werner, “Hindu Law: Beyond Tradition and Modernity” Delhi: Oxford UP ( 2003)
295
Section 5 of Hindu Marriage Act 1955
296
Section 8(v) of Hindu Marriage Act 1955
297
Seema v.Ashwani Kumar AIR 2006 SC 1158

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law for registration of marriages298. But, it is explicitly laid down in Hindu Marriage Act
that non registration does not affect the validity of marriage. Thus marriage can be valid
without registration.299

Marriage implies that parties will live together. But if one party to marriage
refuses to live with the other without reasonable cause the aggrieved party can compel
the other to live with him or her by filing a petition in the matrimonial Court. This right
is called restitution of conjugal rights. And this right is protected under Section 9 of the
Hindu Marriage Act 1955, Section 22 of the Special Marriage Act and also under Indian
Divorce Act 1869. However, the constitutional validity of section 9 has been challenged.
S.C. said that in the privacy of home and married life, neither Article 21 nor Article 14
has any place. Conjugal rights are not mere creatures of the statute. Such a right is
inherent in the very institution of marriage itself.300

This remedy is available to both the spouses. A man cannot claim restitution as
against the second wife if the first wife is living and marriage is valid.301 In case there is
continuous demand of dowry on the part of husband, this would amount to giving
reasonable cause to the wife to withdraw herself from the society of the husband.302

Judicial Separation is an attempt to reconcile between the parties to marriage

before permanent separation. Sec 10 of the Hindu Marriage Act says that any party to the
marriage may present a petition for a decree of judicial separation on certain grounds
specified under section13(1), the wife is also entitled to a decree of judicial separation on
any of the grounds specified under section 13(2). However, the decree does not terminate
the marriage relationship but suspend the mutual rights and duties for a specific time. In
the words of S.C, “it has also to be kept in mind that before granting the prayer to
permanently snap the relationship between parties to the marriage every attempt should
be made to maintain the sanctity of the relationship which is important not only for the

298
National Commission for Women Draft On The Compulsory Registration of Marriage Bill, 2005.
299
Krishan Paul v.Ashok Kumar Paul 1982 HLR478
300
Saroj Rani v.Sudarshan Kumar Chadha (1984) 4 SCC 90
301
Asha Kumari v.Satish Kumar 1990(1)HLR7
302
Narinder Kumar v.Chander Prabha 1990(1)HLR518

123
individuals or their children but also for the society. It would be too hazardous to lay
down a general principle of universal application”303

Judicial Separation creates many rights and obligations. Such as - (1) It permits
the parties to live separately. (2) Mutual rights and obligations of marriage are
suspended.(3) It does not end the marriage relationship, but offers an opportunity to the
parties for reconciliation.(4) If cohabitation is not resumed for a period of one year or
more after a decree for Judicial Separation parties may obtain divorce.(5) A decree of
Judicial Separation is a judgment in rem and will be operative till it is not rescinded.
[Sec. 10(2)](6) In Judicial Separation, the court has Jurisdiction to deal with the
maintenance u/s 24 & 25 of custody etc. of children under Section 26 and of property
under Section 27 of the Hindu Marriage Act.

However, if the petitioner fails to establish a ground for Judicial Separation, the
Court has power to pass a decree for Judicial Separation, even though petitioner has not
prayed for that304. It becomes a ground for divorce if the couple fails to resume their co-
habitation after the court has passed a decree of judicial separation.

Though, marriage is a sacrament under old Hindu Law, but, Section 13 of the
Hindu Marriage Act 1955 permits the Hindu spouse to obtain divorce from the court of
law under the following grounds. However, Common grounds under Sec. 13(1) of the
Act are as follows - (a)Adultery - One single act of adultery is enough for the petitioner
to get a divorce. (b) Cruelty – A person can also file a divorce on the ground of
cruelty305. (c) Desertion – If one of the spouses voluntarily abandons his/her partner for
not less than a period of two years, the abandoned spouse can file a divorce case on the
ground of desertion306(d)Conversion –If any of the spouses converts into another
religion, the other may file a divorce petition on this ground. But, conversion to another
religion does not by itself dissolve the marriage, unless the court passes the decree of
divorce or maintenance.307(e) Mental Disorder – Mental disorder is a well established

303
Hirachand Srinivas Managaonkar v. Sunanda , AIR 2001 SC 1285.
304
Section 13A (inserted by Marriage Laws (Amendment) Act 1976 )
305
Marriage Laws (Amendment) Act 1976
306
Inserted by Marriage Laws (Amendment) Act 1976
307
(1984) ALR 217 (Delhi )

124
ground for filing a divorce.308 (f)Leprosy – In case of a ‘virulent and incurable’ form of
leprosy, a petition can be filed by the other spouse based on this ground. (g) Venereal
Disease – If any party to the marriage is suffering from a sexual disease that is easily
communicable, a divorce can be filed by the other spouse. (h) Renunciation – A Hindu
marriage can be dissolved if any of the spouses renounces all the worldly affairs by
embracing a religious order. (I) Not Heard Alive – If any party to the marriage is not
seen or heard alive by those who are expected to be ‘naturally heard’ of the person for a
continuous period of seven years or more, the person is presumed to be dead. The other
spouse can seek divorce on this ground.

Under Section 13(1-A) two other grounds were added by the Marriage laws
(Amendment) Act 1964. (1) No resumption of cohabitation for a period of 1 year or
upward after the passing of a decree of Judicial Separation. Or (2) No restitution of
conjugal rights as between the parties for a period of one year or upward after the passing
of a decree for restitution of conjugal rights.

Section 13(2) of the Hindu Marriage Act 1955 provides some special grounds to
a Hindu wife for obtaining divorce from her husband these grounds are (1) Remarriage
of husband. (2) Husband guilty of Rape, Sodomy or bestiality (3) Non-Resumption of
cohabitation (4) Repudiation of Marriage. In this context it is very important to mention
that repudiation of marriage is the similar provision as is given to a Muslim wife which
is known as ‘khayar-ul-Bulugh’.

Divorce by Mutual Consent - Beside the above fault grounds, there is another
important ground of divorce under Section 13B of the Act, which is known as divorce by
mutual consent309. When there is total breakdown of the matrimonial relationship and the
parties are living separately for a period of one year or more, on the basis of the mutual
agreement, they can obtain divorce from a court of law. A petition for divorce by mutual
consent requires that (a) the parties have been living separately for a period of one year
or more, (b) the parties have not been able to live together and (c) the parties have
mutually agreed to live separately.

308
Inserted by Marriage Laws (Amendment) Act 1976
309
Inserted by Marriage laws Amendment Act 1976

125
 In Sureshha Devi case Supreme Court held that it is not necessary that parties
should be living under separate roofs. They might be living in the same house but not as
husband and wife.310 After the presentation of the petition, the parties have to wait for six
months though not for more than eighteen months and thereafter divorce can be granted
by the court. However, there is a controversy regarding the requirement of waiting for 6
months and the recent trend is to waive the statutory period considering the facts and
circumstances of the cases.311 The period of 18 months is a maximum limit within which
petition can be withdrawn. But the court has power to grant divorce even after the expiry
of that time or even before the expiry of six months if all the conditions are fulfilled.312

The procedure for divorce in India for Hindu is a long process and somewhat
tedious. There are so many loopholes in the enactments. It has proved to be inadequate to
give remedy to the parties to the marriage which has proved to be a total failure. The
husband and wife have separated and have been living separately for many years and
now it has become impossible for the parties to resurrect the marriage. But, there is no
remedy. It is not necessary to decide the question as to which party was at fault. It would
be enough to prove that the relation between husband and wife have reached such a
breaking point that there is no question of reconciliation. In such case divorce laws
should be liberal. Hindu marriage should be allowed to be dissolved on the ground of
irretrievable break down of marriage.313

Divorce under custom - Before the enactment of the Hindu Marriage Act 1955,
customary laws permit divorce among the Hindus. However, Section 29 of The Hindu
Marriage Act, 1955 gives statutory recognition to customary divorces. Thus, under the
modern Hindu law, in respect of the pre-Act as well as post-Act marriages the customary
mode and forum of divorce are still available. Supreme Court314 said that ancient and
unbroken custom of divorce would be recognized and a valid marriage could be
dissolved by customary mode of divorce. However, to such divorces, no provision of the
Hindu Marriage Act, 1955 applies. The customary divorces can be obtained through the
agency of gram panchayat or caste tribunal or caste panchayats, by private act or parties,

310
Sureshha Devi V. Om Prakash 1992 SC 1904
311
Anita Sharma V. Nil AIR 2005 Del 365
312
See Supra note 173 at p.79
313
See 71st Law Commission Report. April,1978
314
Shakuntalabai v. Kulkarni 1894) 17 Madras 4791894] 17 Madras 479

126
orally or in writing, or under an agreement, oral or written, such as bill of divorcement,
tyaga-patra or farkat-nama. A custom recognizing divorce must satisfy all the tests of
valid custom. A custom permitting divorce must be valid, reasonable and must not be
against public policy.315

Multiple marriages are often solemnized in contravention of codified law by

taking advantage of non-existent customs. To this extent neither law nor the courts come
to rescue of such parties. Thus, though spouses may not get any right from the marriage,
but the statute protects all the rights of the children born out of such unions.316 317

1.2. Muslim Law - “He (God) it is who did create you from a single soul and
therefrom did create his mate, that he might dwell with her (in love)”...(Qur'an 7:189)

Such is the status of women in Quran. But the position of Muslim women, under
the Muslim law has reached at the stage of maximum degree of deterioration. However,
some important legislation under Muslims law are The Muslim Personal Law (Shariat)
Application Act, 1937, Dissolution of Muslim Marriage Act, 1939, Muslim Women
(Protection) Rights on Divorce Act, 1986 etc.

Marriage under Muslim law is purely a civil contract. In Hedaya,318 it is defined

as “a legal process by which the sexual intercourse and procreation and legitimation of
children between a man and woman is perfectly lawful and valid”. In Abdul Karim
case319Justice Mahmood has expressed the view that Nikah is a civil contract upon
completion of which, by proposal and acceptance, all the rights and obligations which it
creates arise immediately and simultaneously.

However, essentials of Valid Marriage are - (i) proposal and acceptance are
essential requirements of Muslim marriage. Being a contract it also requires ‘Ijab’
(declaration of proposal) and ‘Kabul’ (acceptance) by contracting parties in presence of
witnesses.(ii) ‘Ijab’ and ‘Kabul’ should be made in the presence of the concerned parties

315
Paresh Diwan’s Modern Hindu Law,pp.177
316
Bhogadi vs. Vuggina reported at 2006 (5) Supreme Court Cases 532.
317
legalservices.co.in/blogs/entry/Family-Laws-in-India Last visited on 15 th May 2012
318
Hedaya 25; Baillie,4
319
Abdul Karim V. Salima 8 All 149 (F.B.)

127
or their agents and must be completed at one meeting. (iii) “Competent parties” means,
the parties to marriage must have capacity to marry. The capacity to marry depends on
various factors like understanding, puberty, free will and consent. A person of unsound
mind is not a competent person to marry. Marriage of a person below seven years is also
illegal. Between the age-groups of seven and fifteen years it can be contracted by the
guardian on behalf of the minor and after fifteen years of age a person is free to contract
the marriage. There must be free consent of both the parties. It is also necessary for a
valid marriage that parties contracting marriage must be acting under free will and
consent and not under coercion or compulsion. (iv)The proposal and Acceptance are to
be made before at least two male witnesses or one male and two female witnesses. The
witnesses must be competent person. Absence of witnesses makes the marriage voidable.
Witnesses are necessary at the time of marriage to Sunnis and at the time of dissolution
of marriage to Shias. (v) Parties to marriage should not be within prohibited.

The prohibition among the parties may be of two kinds -(1) Absolute prohibition
and(2) Relative prohibition. (1) Absolute prohibition - Absolute prohibition may be
discussed under three heads namely Consanguinity, Affinity and Fosterage.
Consanguinity refers to blood relationship and man cannot marry his mother or
grandmother highsoever, his daughter or grand-daughter howlowsoever, his sister, his
niece, his aunt from paternal or maternal side. Affinity refers to those relationship which
is generally related through marriage e.g., wife’s mother, wife’s daughter or grand-
daughter howlowsoever, wife of one’s father or paternal grand-father how highsoever
and wife of one’s son or son’s son or daughter’s son howlowsoever. A marriage either
with a woman prohibited by reason of consanguinity or by affinity is void. Foster
relationship arises between two persons so connected through sucking milk. However, a
man is prohibited to marry his foster sister. (2) Relative prohibition refers to such causes
which make the marriage invalid but if it is removed, the marriage becomes lawful.
Relative prohibitions are (a) Period of Iddat – ‘Iddat’ is a period during which a woman
can’t marry after the dissolution of her marriage. A Muslim marriage is not dissolved on
the death or divorce, it continues for some duration to resolve the confusion of parentage.
During the Iddat period, the husband is bound to maintain the divorced wife, the wife is
also entitled to get deferred dower. In Jhondu case, Lahore High Court held that a

128
marriage with a woman undergoing Iddat is not void, but irregular.320(b) Parties to
marriage from different religions - A Muslim woman cannot marry a non Muslim man.
But, a Muslim male can marry a non-Muslim Woman provided she is not an idolatress or
fire-worshipper. (c) Absence of witnesses - Under Shia law presence of witnesses is not
necessary but under Sunni law the absence of witnesses makes marriage invalid.(d)
Polygamy - Mohammedan law permits polygamy with a restriction of maximum four
wives, but, Polyandry is not permissible. A marriage with a wife of another or remarriage
with one’s own divorced wife when legal prohibition still present is void.321

Some other incapacities are (a) man cannot marry a woman already pregnant by
her former husband.(b) Marriage with a sick man from disease which is likely to be fatal
is invalid but if such marriage is consummated it becomes valid. (c) After divorcing a
woman a Muslim male can’t remarry her unless such woman marries another man and
his marriage with such another person is dissolved after consummation.

A valid marriage has many effects like sexual intercourse become legal, children
born of such wedlock are legitimate. Also, the parties become to inherit the properties of
one another. The rights and duties of husband and wife are as under - Some Rights of a
husband and duties of his wife are (1) wife is bound to allow her husband to have sexual
intercourse with her, of course with due regard to her health, decency and place. (2)She
is bound to observe strict conjugal fidelity.(3) She shall live in the house of her husband
and observe purdah, if necessary.(4)She has to obey her husband’s lawful commands.

Some Rights of a wife and duties of her husband are (1) wife is entitled to get
dower and she can refuse cohabitation, if it is not paid. (2)She is entitled to maintenance
with due consideration to husband’s capacity.(3)She is entitled to equal treatment and
separate sleeping apartment, if there are more than one wives.(4)She is entitled to visit to
her parents and other blood relations with reasonable frequency. (4)She becomes entitled
to use separate room in the hushand’s house from where she can exclude all others
except her husband. (5) She can refuse to live with her husband in his house, if he starts
idol worshipping.

320
Jhondu v. Mst.Hussaini Bibi AIR1923 Lah.949
321
Rashid Ahmed v. Anisha Khatoon (1931)59 I.A. 21

129
 Child Marriage Restraint Act, 1929 is applicable to all Indians including
Muslims. Under the Act minor’s marriage is prohibited. It states every marriage under
the age of 18 years is child marriage. In this regard personal laws are nullified, Muslims
are also not exempted.322

A Muslim girl can repudiate her marriage on attainting majority, if her marriage
was contracted by her guardian and the marriage was not consummated (Khyar -Ul –
Bulugh). Section 2 of Dissolution of Muslim Marriage Act, 1939 provides that a Muslim
woman will lose her right if on attaining puberty and on being informed of the right, she
does not repudiate the marriage within a reasonable time. She can exercise this right
within 3 years from the date of attaining 15 years i.e., 18 years.

Muta’ means use or enjoyment. It is a marriage for enjoyment for a specific

period of time. Like Nikha, this marriage is also a contract and it also requires
acceptance and declaration. Dower is another important essential of Muta. Muta
marriage can be contracted only on payment of dower. No mutual rights and obligations
arise from such marriage. However, children born out of such marriage are legitimate
and can inherit the property from the parents. The right of divorce is not recognized in
Muta. However, it dissolves automatically after the expiry of specific period. In
Shahzada Qanum case323, it is held that where muta is contracted for unspecified period,
a nikah marriage will result Shia school mainly recognized such marriage.

Iada-e-huquq-e-zanashoi’ or Restitution of conjugal rights under Muslim law is

regarded as a suit for specific performance of a contract. The concept of restitution of
conjugal rights was introduced in India in the case of Moonshee Buzloor Ruheem
case324 , where such actions were regarded as considerations for specific performance. In
the words of Tayabji, “Where either the husband or wife has, without lawful ground
withdrawn from the society of the other, or neglected to perform the obligations imposed
by law or by the contract of marriage, the court may decree restitution of conjugal rights,
may put either party on terms securing to the other the enjoyment of his or her rights”.325

322
Dr.S.C.Tripathi and Vibha Arora, Law Relating To Women And Children,3rd edition 2008, Central Law
Publication.
323
Shahzada Qanum v.Fakher Jahan AIR1953 Hyd.6
324
Moonshee Buzloor Ruheem v. Shumsoonissa Begum (1867) 11 MIA 551
325
Tayabji : Muslim law, 4thEdn ,pp.44-45

130
In Abdul Kadir case326 , the Allahabad High Court decided that the concept of restitution
must be decided on the principles of Muslim Law and not on the basis of justice, equity
and good conscience. The defenses for the suit are327 -(i) Invalidity of marriage.(ii)
Cruelty on the part of the plaintiff. (iii) False charge of adultery against the
defendant.(iv) Non-payment of prompt dower if the defendant is a wife. (v) Lain and
Zihar, i.e. when it is improper for the parties to cohabit.(vi) Apostacy.(vii) Repudiation
of marriage on attaining age of majority or puberty.(viii) Impotency of the plaintiff. (ix)
Dissolution of marriage or divorce.

In Islam, divorce is considered as a contrary act to the status of marriage. The

Prophet declared that among the things which have been permitted by law, divorce is the
worst. But sometimes it is impossible for the parties to the marriage to carry on their
union with mutual affection and love then it is better to allow them to live separately.
There are several modes of divorce under the Muslim law by husband and wife which
will be discussed hereafter328 The grounds of divorce by husband, recognized by Muslim
are law (1) Talaq (2) Illa and (3) Zihar.

A wife under Muslim law cannot divorce her husband of her own accord. She can
divorce the husband only where husband has delegated such right to her or under an
agreement. However, under Muslim law divorce by wife is possible only under the
following circumstances.

Talaq-e-Tafweez - A Muslim husband has unrestricted right to divorce his wife.

This right is absolute in nature and he can exercise this right by himself or delegate this
power to any other person, even to his wife. This form of delegated power of divorce is
called Tafweez. Such delegation of power may be unconditional or subject to certain
condition or contingency. A temporary delegation of power is irrevocable but a
permanent delegation may be revoked by the husband329

A divorce by mutual consent of the parties is a unique feature of Muslim law.

Whenever parties to the marriage feel that it is no longer possible for them to live with

326
Abdul Kadir v. Salima ILR(1886) 8 All. 149
327
M .N. Das, Marriage and Divorce, (6th ED. : 2002) (Eastern Law House New Delhi)
328
http:// www.legalserviceindia.com/.../l393-Divorce-under-Muslim-Law.html
329
Mulla, Principles of Mohammedan Law, 19th Edn.

131
each other with love and affection they can be separated from each other there are two
forms of divorce by mutual consent (1) Khula (2) Mubarat.

(1) Khula - Khula means to take off the clothes. In law it means laying down by the
husband of his right and authority over his wife for an exchange. A divorce by Khula is a
divorce with the consent and at the instance of the wife, in which she gives or agrees to
give a consideration to the husband for her release from the marriage tie. In such a case
the terms of the bargain are matters of arrangement between the husband and wife, and
the wife may, as the consideration, sacrifice her rights in favour of the husband.330Khula
is a divorce by mutual consent but, actually it is a divorce purchased by wife from the
husband for a price.331

(2) Mubarat - Mubarat is also a divorce by mutual agreement. In Mubarat, both parties
are equally willing and the offer for separation may come either from husband or from
wife to be accepted by the other. Like Khula, there is no question of compensation to
each other by any party in Mubarat as both the parties desire separation.

Before the passing of Dissolution of Muslim Marriages Act, 1939, the wife could
apply for the dissolution of her marriage only on the grounds of (a) impotency of the
husband, (b) Lian, and (c) option of puberty. British courts had denied the Muslim
women to dissolute their marriage on any other grounds available to them under the
Shariat. Muslim women had suffered great hardship due to this. Some women even
converted to other religion to get rid of marriage tie.332

However, the Dissolution of the Muslim Marriage Act, 1939 introduced many
changes in this respect as well as restored right of divorce granted to the Muslim women
under Shariat.333

Section 2 of Dissolution of Muslim Marriage Act, 1939 provides nine grounds

under which a Muslim wife can obtain a decree for the dissolution of her marriage. The
grounds are (i) If the whereabouts of the husband are not known for a period of four

330
Moonshee-Buzlu-ul-Raheem v.Lateefutoonissa 8MIA395,399
331
Aqil Ahmad; Mohammedan Law, Central Law Agency, 7th Edn. Pp13-15
332
Ibid.
333
Ibid.

132
years a woman married under Muslim law shall be entitled to obtain a decree for the
dissolution of her marriage.(ii) If the husband has neglected or has failed to provide for
her maintenance for a period of two years, a married Muslim woman can obtain a decree
for the divorce.334(iii) If the husband has been sentenced to imprisonment for a period of
seven years or upward the wife is entitled to decree of the court dissolving her marriage,
but no decree can be passed on this ground unless the sentence has become final. [Sec.
2(iii) read with proviso (a), Dissolution of Muslim Marriage Act, 1939].(iv) If the
husband has failed to perform, without reasonable cause, his marital obligations for a
period of three years, the wife can get her marriage dissolved by means of a decree.(v) If
the husband was impotent at the time of the marriage and continues to be so, the wife is
entitled to judicial divorce for the dissolution of her marriage.(vi) If the husband has
been insane for a period of two years or is suffering from leprosy or a virulent venereal
disease the wife may claim a judicial divorce under Sec. 2 (vi) of the above Act. It is to
be noted that leprosy and virulent diseases need not be two years old, it may be even
recent.(vii) If she, having been given in marriage by her father or other guardian before
attaining the age of 15 years, repudiated the marriage before attaining the age of 18 years
and the marriage is not consummated, she is entitled to a decree of divorce.(vii) Judicial
divorce may also be claimed by a Muslim wife, if the husband treats her with cruelty.
(ix) Grounds of dissolution recognized by Mohammedan Law - The wife is also entitled
to a decree for the dissolution of her marriage on any other ground which is recognized
as valid for the dissolution of marriages under Muslim Law like illa, zihar, khula,
mubarat, tafweez, Lian etc.335

The Muslim personal Law treats the women unequally with man. Polygamy, oral
unilateral divorce, low amount of dower, lack of maintenance, absence of protective laws
make the life of Muslim women measurable. Even the holy Quran does not provide equal
rights to the Muslim women in respect of marriage and divorce. In the last two decades,
no effort has been made to reform the Muslim law relating to marriage and divorce by
codifying it and making it uniformly applicable to the entire Muslim population across
the country.

334
Yusuf v. SowrammaAIR 1971 Ker261.
335
clause (ix) of Section 2 of the Act, 1939

133
1.3. Christian - The Christian Marriage Law in India is governed by the Indian
Christian Marriage Act of 1872.Marriage according to Christian law is not merely a civil
contract, nor purely a religious contract. It is a contract in accordance with the law of
nature. Christians consider marriage as the voluntary union for life of one man and one
woman.336

The Indian Christian Marriage Act of 1872 extends to the whole of India except
the territories of former State of Travancore-Cochin, Manipur and Jammu and Kashmir.
The former States of Travancore and Cochin are now form part of Kerala and Tamil
Nadu. They are governed by the Cochin Christian Civil Marriage Act and it is the
customary law or personal law that prevails in Jammu, Kashmir and Manipur.337

The Act provides that every marriage in India between persons, one or both of
whom is or are a Christian or Christians, shall be solemnized in accordance with the
provisions of the Indian Christian Marriage Act338.But, it must be solemnized between
the hours of six in the morning and seven in the evening. Registration of Marriage is
compulsory. Notice of intended marriage must be given by any of the parties. The Act
prohibits such marriage where the parties are related with each other by prohibited
degrees of consanguinity or affinity. The operation of this Act is not confined to a
marriage to which both the parties are Christians. A marriage to which one party alone is
a Christian is also regulated by the provisions of this Act, but such a marriage will have
to be solemnized according to the provisions of this Act. However, the Indian Christian
Marriage Act is comprehensive enough to deal with the matters relating to the
solemnization of Christians marriage in India when both the parties to the marriage are
Christians. But in case of marriage between Christian and non-Christian it is better to
solemnize the marriage under the Special Marriage Act, 1954.339

Indian Divorce Act 1869 regulates the law relating to the divorce of Indian
Christian. A Christian Marriage can be dissolved by a decree of the court passed under
Section 10 of the Act. The Act is also applicable if one of the parties to the marriage is a

336
http:// en.wikipedia.org/wiki/Christian_Law_of_Marriage_in_India Last visited on 19th April 2012
337
Indian Christian Marriage Act, 1872
338
Section 4, I C M A,1872
339
Mamta Rao; “Law relating to women and children” Eastern Book Company, Lucknow (2010) P. 256

134
Christian. However, Section 10 of the Act provides that a husband or the wife may
present a petition to the District Court for the dissolution of their marriage solemnized,
either before or after the commencement of the Indian Divorce (Amendment) Act, 2001,
on the following grounds -(1) has committed adultery; or(2) has ceased to be Christian
by conversion to another religion; or(3) has been incurably of unsound mind for a
continuous period of not less than two years immediately preceding the presentation of
the petition; or(4) has, for a period of not less than two years immediately preceding the
presentation of the petition, been suffering from a virulent and incurable form of leprosy;
or (5)has, for a period of not less than two years immediately preceding the presentation
of the petition, been suffering from venereal disease in a communicable form; or (6)has
not been heard of as being alive for a period of seven years or more by those persons
who would naturally have heard of the respondent if the respondent had been alive; or
(7)has willfully refused to consummate the marriage and the marriage has not therefore
been consummated; or (8)has failed to comply with a decree for restitution of conjugal
rights for a period of two years or upwards after the passing of the decree against the
respondent; or (9)has deserted the petitioner for at least two years immediately preceding
the presentation of the petition; or (10)has treated the petitioner with such cruelty as to
cause a reasonable apprehension in the mind of the petitioner that it would be harmful or
injurious for the petitioner to live with the respondent. However a wife may also present
a petition for the dissolution of her marriage on the ground that the husband has, since
the solemnization of the marriage, been guilty of rape, sodomy or bestiality.

10-A of the Act deals with the dissolution of marriage by mutual consent. It says
that a petition for dissolution of marriage may be presented to the District Court by both
the parties to a marriage together, on the ground that they have been living separately for
a period of two years or more, they have not been able to live together and they have
mutually agreed that the marriage should be dissolved.340

The Court shall, on being satisfied, after hearing the parties and making such
inquiry, as it thinks fit, that a marriage has been solemnized and that the averments in the
petition are true, pass a decree (not earlier than six months and not later than eighteen

340
Clause 1 sec.10A , IDA,1869

135
months) declaring the marriage to be dissolved with effect from the date of decree.341
And if the Court is satisfied that the case of the petitioner has been proved, shall
pronounce a decree declaring such marriage to be dissolved.342

Decree for dissolution to be nisi - In the first instance every decree for dissolution
of marriage made by a High Court shall be a decree nisi, not to be made absolute till the
expiration of not less than six months from the date of pronouncement. During that
period any person shall be at liberty to show cause why said decree should not be made
absolute. On cause being so shown, the Court shall deal with the case by making the
decree absolute, or by reversing the decree nisi, or by requiring further inquiry, or
otherwise as justice may demand. If the petitioner fails, within a reasonable time, to
move to have such decree made absolute, the High Court may dismiss the suit.343

1.4. Parsi Women

Marriage - Marriage to parsi is a contract. Parsees are guided by the Parsi Marriage and
Divorce Act Act.1988. Requisites of valid Parsi marriage are (a) the contracting parties
must not be related to each other in any of the degrees of consanguinity or affinity. (b)
‘Ashirvad’ ceremony must be performed by the parties with the help of a priest in the
presence of two Parsi witnesses.(c) parties to the marriage must complete the age of
twenty one years if a male and eighteen years of age if a female.344

No Parsi shall contract any marriage under this Act or any other law in the
lifetime of his or her wife or husband, except after his or her lawful divorce or after his
or her marriage has lawfully been declared null and void.345Otherwise, he or she shall be
a subject to the penalties provided in sections 494 and 495 of the Indian Penal Code (45
of 1860) for the offence of marrying again during the lifetime of a husband or wife.346

Every marriage contracted under this Act shall, immediately be certified by the
officiating priest and send to the Registrar of the Place signed by the said priest, the

341
Section 10(2), IDA, 1869
342
Sec. 14, IDA, 1869
343
Sec.16, IDA,1869
344
Sec.3 PMDA,1936
345
Sec.4, PMDA,1936
346
Sec.5, PMDA,1936

136
contracting parties, and two witnesses present at the marriage. The Registrar shall enter the
certificate in a register to be kept by him for that purpose. 347

Divorce - If a husband or wife shall have been continually absent from each other for
the space of seven years, and shall not have been heard of as being alive within that time
by those persons who would have naturally heard of him or her, had he or she been alive,
the marriage of such husband or wife may, at the instance of either party be dissolved.348

However, a marriage can be dissolved on any of the following grounds349like

(a) the marriage has not been consummated within one year after its solemnization owing
to the willful refusal of the defendant to consummate it; (b) the defendant at the time of

the marriage was of unsound mind.(bb) the defendant has been incurably of unsound
mind for a period of two years or upwards immediately preceding the filing of the suit
(c) the defendant, was, at the time of marriage, pregnant by some person other than the
plaintiff. (d) the defendant has since the marriage committed adultery or fornication or
bigamy or rape or an unnatural offence. But, divorce shall not be granted on this ground
if the suit has been filed more than two years after the plaintiff came to know of the fact.
(dd) the defendant has since the solemnization of the marriage treated the plaintiff with
cruelty or has behaved in such a way as to render it in the judgment of the Court compel
improper to the plaintiff to live with the defendant. (e) the defendant has since the
marriage voluntarily caused grievous hurt to the plaintiff or has infected the plaintiff with
venereal disease or, where the defendant is the husband, has compelled the wife to
submit herself to prostitution. (f) the defendant is undergoing a sentence of imprisonment
for seven years or more for an offence as defined in the Indian Penal Code. (g) the
defendant has deserted the plaintiff for atleast two years.(h) the parties have not had
marital intercourse for one year or more since such decree or order.(i) the defendant has
ceased to be a Parsi by conversion to another religion. But divorce shall not be granted
on this ground if the suit has been filed more than two years after the plaintiff came to
know of the fact.

347
Sec. 6, PMDA,1936
348
Sec 31, PMDA,1936
349
Sec.32, PMDA,1936

137
 Under Section 32-A(1) of the Act, either party of the marriage may sue for
divorce also on the ground - (i) that there has been no resumption of cohabitation as
between the parties to the marriage for a period of one year or upwards after the passing
of a decree for judicial separation in a proceeding to which they were parties; or (ii) that
there has been no restitution of conjugal rights as between the parties to the marriage for
a period of one year or upwards after the passing of a decree for restitution of conjugal
rights in a proceeding to which they were parties. But, no decree for divorce shall be
granted under sub-section (1) if the plaintiff has failed or neglected to comply with an
order for maintenance passed against him under Section 40 of this Act or Section 488 of
the Code of Criminal Procedure, 1898 or Section 125 of the Code of Criminal Procedure,
1973.350

Under Section 32B of the Act, a suit for divorce may be filed by both the parties
to a marriage together, whether such marriage was solemnized before or after the
commencement of The Parsi Marriage and Divorce (Amendment) Act, 1988, on the
ground that they have been living separately for a period of one year or more, that they
have not been able to live together and that they have mutually agreed that the marriage
should be dissolved. But, no suit under this Section shall be filed unless at the date of the
filing of the suit one year has lapsed since the date of the marriage. The Court shall, on
being satisfied that a marriage has been solemnized under this Act and the averments in
the plaint are true and that the consent of either party to the suit was not obtained by
force or fraud, pass a decree declaring the marriage to be dissolved with effect from the
date of decree.

1.5. Special Marriage Act, 1954 - Special Marriage Act, 1954 deals with a form of
marriage which is purely a civil contract for the people of India and all Indian nationals
in foreign countries, irrespective of the religion or faith followed by either party. The Act
is applicable to the entire territory of India (excluding the states of Jammu and Kashmir)
and extends to intending spouses who are both Indian nationals living abroad. Any
person of Indian origin irrespective of religion (Hindu, Buddhist, Jain, Sikh, Muslim,
Christian, Parsi, or Jewish) can also perform marriage under the Special Marriage Act,
1954.

350
Sec.32A(2) The Parsi Marriage and Divorce (Amendment) Act, 1988,

138
 Requisites of valid marriage under the Special Marriage Act, 1954 are (1)
Performance of any ceremony or rituals is not necessary as it is a civil contract. (2)The
parties have to file a Notice of Intended Marriage to the Marriage Registrar of the
district. (3) One of the parties to the marriage must reside for a period of not less than
thirty days immediately preceding the date on which such notice is given. (4)After the
expiration of thirty days from the date on which notice of an intended marriage has been
published, the marriage may be solemnized, unless it has been objected to by any person.
(5)The marriage may be solemnized at the specified Marriage Office. (6)The parties to
the marriage should not have any other subsisting valid marriage. (7)The bridegroom
must be at least 21 years old; the bride must be at least 18 years old. (8)The parties
should be competent to give valid consent for the marriage. (9)The parties should not fall
within the degree of prohibited relationship.

The district court may decree for the restitution of conjugal rights on petition
either by the husband or the wife if the other without reasonable excuse, withdrawn from
the society of him or her,351

A petition for judicial separation352 may also be presented to the district court
either by the husband or the wife (a)on any of the grounds specified in sub-sections
(1)and (1-A) of section 27,(b) on the ground of failure to comply with a decree for
restitution of conjugal rights; and the court,(c) on being satisfied of the truth of the
statements made in such petition, and that there is no legal ground why the application
should not be granted, may decree judicial separation. But, the court may rescind the
decree if it considers it just and reasonable.

Under this Act,353 a petition for divorce may be presented to the district court
either by the husband or the wife on the ground that the respondent (a) has since the
solemnization of the marriage committed adultery; or (b) has deserted the petitioner for a
continuous period of not less than two years immediately preceding the presentation of
the petition; or (c) is undergoing a sentence of imprisonment for seven years or more for
an offence as defined in the Indian Penal Code. (d) has since the solemnization of the

351
Section22, SMA,1954
352
Section23 SMA,1954
353
Section 27 SMA,1954

139
marriage treated the petitioner with cruelty; or (e) has been incurably of unsound mind or
suffering continuously or intermittently from mental disorder of such a kind and such an
extent that the petitioner can’t reasonably be expected to live with the respondent. (f) has
been suffering from venereal disease in a communicable form( the disease not having
been contracted from the petitioner); or (g) has been suffering from leprosy, the disease
not having been contracted from the petitioner; or (h) has not been heard of as being
alive for a period of seven years or more by those persons who would naturally have
heard of the respondent if the respondent had been alive; or (IA) A wife may also present
a petition for divorce to the district court on the ground,- (i) that her husband has since
the solemnization of marriage been guilty of rape, sodomy or bestiality; (ii) that in a suit
under section 18 of the Hindu Adoption and Maintenance Act1956, or in a proceeding
under section 125 of the criminal procedure code,1973 or under section 488 of the
criminal procedure code,1898, a decree or order as the case may be, has been passed
against the husband awarding maintenance to the wife notwithstanding that she was
living apart since the passing of such decree or order, co-habitation between the parties
has not been resumed for one years or upwards.

(2) Either party to a marriage may also present a petition to the District Court on
the ground that - (i) the parties have not resumed cohabitation for a period of one years
or upwards after the passing of a decree for judicial separation; or (ii) the parties have
failed to comply with a decree for restitution of conjugal rights for a period of one years
or upwards after the passing of the decree.

A petition for divorce may also be presented to the district court by both the
parties together on the ground that they have been living separately for a period of one
year or more, that they have not been able to live together and that they have mutually
agreed that the marriage should be dissolved. The district court shall, on being satisfied,
after hearing the parties and after making such inquiry as it thinks fit, that a marriage has
been solemnized under this Act and that the averments in the petition are true, pass a
decree declaring the marriage to be dissolved with effect from the date of the decree.354

354
Section 28, SMA,1954

140
 In India the matter relating to marriage and divorce are regulated by personal
laws. Personal law decides the competency of the parties to the marriage, the rituals of
marriage, maximum number of spouse the party can marry etc. However, for the vigilant
eye of the legislature and judiciary there has been continuous development of personal
law by amendment and judicial interpretation which has made them more open-minded.
Previously a Christian woman could claim divorce only if they could prove that their
husband was guilty of two matrimonial offences such as cruelty and adultery, now they
are entitled to a divorce by proving one matrimonial offence. Similarly under Hindu
Marriage Act, the divorce on the grounds of cruelty has been extended by several
judgments. Courts interpreted Shariat Act liberally several times on occasions giving
relief to the muslim women illustrating their legal rights under the Shariat. Another
important fact is preparation of nikahnama to secure the interests of women and explain
the right of khulla guaranteed under the Shariat to muslim women.355

2. Law relating to right of Maintenance - In the matters of maintenance,

most of the communities are governed by the codified law except Muslims. A mount of
maintenance is fixed on the basis of the conduct of the parties, income, property and
other circumstances. There is no straight jacket formula for fixing the amount of
maintenance. The permanent alimony is awarded to the wife so that she should not be
thrown on the street and compelled to adopt a disreputable way of life. Thus the
provision is made to protect the interest of society.

In the matter of Maintenance, Hindus are governed by the Hindu Marriage

Act1955, Hindu Adoption and Maintenance Act 1956 and Criminal Procedure Code. It
deals with the maintenance of wife, widowed daughter-in-law, minor children and aged
parents. Under the Act maintenance means providing food, clothing, residence,
education and medical treatment and other necessary expenses etc.

Hindu Adoption and Maintenance Act empowers a Hindu wife to claim

maintenance from the husband during her life time, regardless of whether the marriage
was formed before this Act was enacted or after. She shall also be entitled to live
separately from her husband without forfeiting her claim to maintenance unless she is

355
http://www.csss-isla.com/Status-report.pdf. Last visited on 20th May, 2012

141
unchaste or ceases to be a Hindu by conversion.356Thus, it would include the right to
residence.357 However, the wife is allowed to live separately from her husband and still
be provided for by him under the following circumstances like (1) the husband is guilty
of desertion (2) the husband treats her with cruelty (3) the husband is suffering from
virulent form of leprosy (4) the husband has another wife living (5) the husband keeps a
concubine in the same house (6) the husband is converted to other religion (7) any other
cause justify her living separately.

However, maintenance under this section can be claimed even if the petition of
husband filed under Sections 9 to 14 of the Hindu Marriage Act for a decree of
restitution of conjugal rights, Judicial Separation or for divorce is dismissed.358

In case of a widowed daughter-in-law, it is the duty of the father-in-law to

maintain her. This legal obligation only comes into effect if she is unable to maintain her
from her own earnings or of her own property or from the estate of her husband or father
or mother or from son or daughter or his or her estate. If the widow remarries, then the
father-in-law will have no liability to maintain her daughter-in-law.359 It is important to
note that the liability to maintain the daughter in law is not the personal liability of father
in law but it depends on the income from the coparcenary property in his hands.360A
minor child is also entitled to get maintenance from his or her parents under the Act361.
Here child includes both legitimate and illegitimate child. A Hindu is also bound to
maintain his or her aged or infirm parents and unmarried daughter, if they are unable to
maintain themselves.

The award of the maintenance amount is depended on the discretion of the courts.
While deciding the amount of maintenance the Court consider the position or status of
the parties, the number of persons entitled to maintenance, the necessity of the claimants,
the value of the claimant's estate income of the claimants, debts of the deceased etc.362

356
Section 18 H.A.M.A ,1956
357
B.P. Achala Anand v. S. Appi Reddy AIR 2005 S.C.986.
358
Govinda Rao v.Anandibai, AIR1976 A.P. 433
359
Section 19 H.A.M.A ,1956
360
Thakur Pal Singh, AIR1961 punj.391
361
Section 20 H.A.M.A ,1956
362
Section 23 H.A.M.A.,1956

142
 Sections 24 & 25 of the Hindu Marriage Act deal with the law relating to
maintenance. The Court can order for maintenance to any party in the form of (a)
maintenance ‘pendente lite’ and expenses of the proceedings363or (b) permanent
maintenance and alimony364.

Maintenance during the pendency of the proceedings is known as maintenance

pendente lite, interim maintenance or temporary maintenance. An application for interim
maintenance can be made both at the trial court as well as at the appellate court for (I)
Personal maintenance of the claimant and (II) expenses of proceedings. But, such
application must be disposed of within 60 days from the date of service of notice.365 The
quantum of interim maintenance must be fixed taking into consideration, the needs of
wife according to status of husband and also her needs towards food, clothing, medical
expenses etc.366

Under the Act, there is a provision for the grant of permanent alimony also at the
time of the passing of the decree or at any time thereafter367. The Act treats both the
husband and the wife equally for the purpose of permanent financial assistance to the
spouse, who is unable to maintain him or her. This grant of permanent alimony and
maintenance is allowed by the court under two conditions- if the applicant (1) remains
unmarried and (2) pursues the chaste life. The right to permanent alimony is a statutory
right and as such it cannot be abridged or taken away by any contract of the parties to
that effect.368 But, this grant is the personal right of the applicant and extinguishes with
the death of the applicant.369 The Marriage laws (Amendment) Act 2001 has added a
proviso to the Section to expedite the application with respect to the maintenance and
education of minor children also370.

363
Section 24 H.M.A,1955
364
Section 25 H.M.A,1955
365
Inserted by Marriage Laws Amendment Act 2001
366
S. Jayomiti v.S.Jayaramam.1997 (2)CTC 258 (Mad)
367
Section 25,H.M.A 1955
368
Manjit Singh v. Savita Kirna, AIR1983P&H 281. Kirtikant D. Vadodaria v. State of Gujarat and
another, (1996) 4 SCC 479
369
Gurdev v. Channo1986 P&H 251
370
Section 26 H.M.A1955

143
2.2. Muslim Women - It was a well established rule of Muslim law that a divorced
Muslim woman was entitled to claim maintenance from her former husband during iddat
period only.

Supreme Court in Shah Bano case371 held that a divorced Muslim woman so
long she has not re-married, is a wife for the purpose of Section 125 of criminal
procedure code and is entitled to claim maintenance from her former husband and the
dower money or mahr is not the amount payable by the husband to the wife on divorce
and can’t therefore be considered as an amount received by the wife for divorce. The
Supreme Court also said that right given under Section 125 of Cr. P.C. is a statutory right
and if there is any conflict in-between the provision of personal law and Section 125 of
Cr. P.C., it can override the provision of personal law. However, the decision of the
Supreme Court creates much controversy among the Muslims and to resolve this dispute
parliament enacted Muslim Women (protection of rights on divorce) Act 1986.

This Act is applicable to all persons who have married and have been divorced by
or have obtained divorce from their husbands in accordance with Muslim law. The Act
says that a divorced Muslim woman is entitled to (a) a reasonable and fair provision and
maintenance during iddat period from her former husband (b) maintenance for children
(c) mahr agreed to be paid to her at the time of her marriage or at any time thereafter
according to the Muslim law and (d) all the properties given to her before or after the
marriage by her friend and relatives or by husband immediately on divorce.372 Regarding
the maintenance after iddat period, the Act says that a divorced Muslim woman can
claim maintenance if she is unable to maintain herself and remains unmarried after the
iddat period from the following person- (a) If the divorced Muslim woman has any
children having means to maintain they are liable to maintain her. (b) If they are absent
or incapable, the parents of divorced woman should maintain her.(c) If the parents could
not maintain her, she can claim maintenance from her such relatives who would inherit
her properties upon her death if she possessed any property. (d)And if there is no such
relative or if they are incapable to maintain her then ultimately State Wakf Board will
maintain her.373 A combined and harmonious reading of the provision of sections 3 to 7

371
Mohd. Ahmed vs Shah Bano Begum AIR 1985 SC 124 3
372
Section 3,MWA,1986
373
Section 4, MWA,1986

144
clearly demonstrates that general object of the legislation is to bring the law of
maintenance payable to the wife in consonance with the Muslim law.374 But ‘reasonable
and fair provision and maintenance to be made and paid to her’ under section 3(1)(a) of
the Act indicates clearly that the divorced woman should get sufficient means of
livelihood after the divorce. The word provision itself indicates that something is
provided in advance for meeting some, which means that at the time of divorce the
husband is required to visualize or contemplate, the extent of future needs and make
preparatory arrangements for the same.375In Danial Latifi case,376S.C held that in terms
of section 3(1)(a) of the Muslim Women (protection of rights on divorce)Act 1986, a
Muslim husband is liable to make reasonable and fair provision for the future of the
divorced wife which also includes her maintenance as well. Such a reasonable and fair
provision extending beyond iddat period must be made by the husband within the iddat
period. In a very recent case, 377 Kerala High Court held that a plain and simple reading
of Sec.2 of the Shariat Act, Secs.125 and 127(3)(b) of the Cr.P.C., the dictum in Bai
Tahira378; Fuzlunbi379 and Shah Bano380 and the provisions of the Act381 makes the
following points crystal clear that (i) The liability under Sec.125 of the Code is there on
all Indians irrespective of their religious identity. The provision in the Code about
payment of maintenance to divorced wives is a secular stipulation applicable universally
to all Indians whatever their religious identity.(ii) that liability under Sec.125 of the Code
can be extinguished by making payment of the amounts payable under the customary and
personal law applicable to a particular community. Persons owing allegiance to Islam are
the only persons who can take advantage of that provision. They can claim
extinguishment of their liability under Sec.125 of the Code on proof that the divorced
wife has received such amounts. On proof of such payment the liability under Sec.125 of
the Code of a divorced husband shall stand extinguished. (iii) that there was a dispute as
to what are the amounts payable under the Muslim Personal Law as Mata at the time of
divorce. The Parliament intervened and enacted the Act which in Sec.3 stipulated the
amounts that are payable.(iv)that once the amounts are paid, the liability under Sec.125

374
Usman Khan v Fatimunnisa Begum, AIR 1990A.P.225
375
A.A.Abdulla v A.B.Mohumana Saiyadbhai AIR1988Guj 141
376
Danial Latifi & Another v. Union of India ((2001) 7 SCC 740)
377
Kunhimohammed v. Ayishakutty, RP(FC).No. 53 of 2006.
378
Bai Tahira v Ali Hussain [1979] 2 SCC 316
379
Fuzlunbi v K. Khader Vali A.I.R. 1980 S.C. 1730;
380
See supra note 371, at p.144
381
Muslim Women(protection of rights on divorce)Act1986

145
of the Code which has already crystallized into an order shall also stand extinguished.
Not the enactment of the Act, not the passing of the order under Sec.3 of the Act; but
only the actual payment of the amounts payable under Sec.3 of the Act shall extinguish
the liability under Sec.125 Cr.P.C. in accordance with Sec.127(3)(b) of the Code.

Thus, the right of a Muslim woman under Sec.125 Cr.P.C. shall not be
extinguished by the enactment of the Muslim Women (Protection of Rights on Divorce)
Act. It shall be extinguished only when the payment under Sec.3 of the Act is actually
made and release is granted by the court under Sec.127 (3) (b) of the Code. So long she
remains a divorced wife she will be entitled to claim maintenance from her divorced
husband. Thus, from the above discussion we can say that a divorced Muslim woman's
right to maintenance from her husband is not extinguished upon divorce she has dual
claims under Section 125 for recurring maintenance, or for a lump sum settlement under
Muslim Women Act 1986.382

2.3. Christian Women - .In any suit under the Indian Divorce Act, instituted by a
husband or wife, the Court on being satisfied may pass order on the husband for the
payment of such expenses of the proceedings and alimony as it may deem fit on the basis
of the claim of the wife. But, it shall in no case exceed one fifth of the husband's average
net income for the three years next preceding the date of the order and shall continue
until the decree is made absolute.383

A Christian woman can also apply for permanent maintenance384 after obtaining
the decree of Judicial Separation or divorce from the District Court or High Court. The
amount of maintenance can be decided on the basis of the factors like income and
property of wife, ability of the husband, conduct of the parties during marriage, social
status of the parties before the separation, the obligation of the husband etc. However,
the court may direct to pay the amount of maintenance to the wife herself or to any

382
www.lawisgreek.com/indian-law-muslim-women-have-right-maintenance-till-remarriage. Last visited
on 21 May, 2012
383
Section 36 IDA,1869
384
Section 37, IDA,1869

146
trustee on her behalf.385A Christian woman can also apply to the Court to pass orders for
the maintenance and education of her minor children.386

2.4. Parsi Women - The Parsi Marriage and Divorce Act, 1936 empowers the right of
a Parsi woman to claim both alimony pendente lite and permanent alimony. The
maintenance can be claimed from the spouse through criminal proceedings or civil
proceedings. The maximum amount that can be decreed by court as alimony pendente
lite is one-fifth of the husband's net income. It shall be disposed of within sixty days
from the date of service of notice on the wife or the husband.387While fixing the quantum
of permanent maintenance, the court will consider the ability of husband to pay, wife's
own assets and conduct of the parties. It will continue so long wife remains chaste and
unmarried.388However, the court may direct to pay the amount of maintenance to the
wife herself or to any trustee on her behalf.389

Court may pass such interim orders and make such provisions as it may deem just
and proper with respect to the custody, maintenance and education of the children under
the age of eighteen years.390

2.5. Maintenance under section 125 of Cr. P.C. - Though, different personal
laws contain different provisions regarding the maintenance of wife, children and aged
parents. The Code of Criminal Procedure 1973 makes an exhaustive provision for the
maintenance of such persons. The provisions are contained in Sections 125 to 128 of the
Code. The object of the proceeding is to prevent helpless condition of wife or children
or father or mother by compelling a person to support them if they are unable to support
themselves. Therefore a married daughter, who has an independent source of income, is
also under legal obligation to do this task.391.

According to Section 125, the following conditions must be satisfied before, a

wife, minor child or parents claim maintenance from a man that (1) the person must have

385
Section 38 IDA,1869
386
Sections 41,42,43 and44 of IDA,1869
387
Section 39 PMDA,1936
388
Section 37,PMDA,1936
389
Section 41, PMDA,1936
390
Section 49 PMDA,1936
391
Vijaya v.kashirao 1986 Cr.L.J1399

147
sufficient means (2) he has neglected or refused to maintain (3) the wife, children or
parents are not able to maintain themselves.392 Thus Section 125(1) of Criminal
Procedure code, says if any person having sufficient means, neglects or refuses to
maintain his wife, unable to maintain herself, a magistrate of the 1st class may upon
proof of such neglect or refusal, order such person to make a monthly allowance for the
maintenance of his wife children father mother at such monthly rate, not exceeding five
hundred rupees in the whole. However it does not recognize persons having illegitimate
relationship entitled to claim maintenance except on illegitimate child.

The needs and requirements of the wife for a moderate living, the earnings of the
husband and his capacity to earn are relevant factors to determine the quantum of
maintenance.393

Supreme Court held that a divorced Muslim woman so long she has not re-
married, is a wife for the purpose of Section 125 of criminal procedure code and is
entitled to claim maintenance from her former husband. The Supreme Court also said
that right given under Section 125 of Cr. P.C. is a statutory right and if there is any
conflict in between the provisions of personal law and Section 125 of Cr. P.C., it can
override that provision of personal law.394Thus it is applicable to all irrespective of their
religion.

The law has also given the liberty to the women for the enhancement of the
maintenance allowance according to the enhancement of the income of the husband and
on proof of a change in the circumstances of any person.395The factum of marriage is not
required to be proved beyond reasonable doubt. If the preponderance of probability
indicates that the applicant wife’s claim is trust worthy, it is sufficient, even the evidence
of long cohabitation as husband and wife may proof a married relationship. The
provisions of this section are independent of personal law or any custom governing the
parties.396

392
K.M. Negamallppa v.B.J.Ledoor 1985 Cr.L.J.1706
393
Raibari Behera v.Mangaraj Behera,1983 Cr.L.J.125
394
See Supra note 380 at p.145
395
Section 127 Cr.P.C
396
See Supra note 380 at p.145

148
 Women of almost all the communities are generally involved in performing the
household duties for which they do not get any remuneration and as a result they are
financially dependent on their spouse. Hindu personal law grants both men and women a
right to maintenance from a spouse who is earning a better income, while only a wife is
entitled to maintenance under Muslim and Christian Personal law. Women from any
community can seek maintenance under Section 125 of the Code of Criminal Procedure.
Its aim is to repair the problems of needy and miserable women.397

3. Inheritance and Property Rights of Women -There is no

uniformity in law regarding property rights of Indian women. Every religious community
in India continues to be governed by their own personal laws .In the matters of
succession, Hindus, Sikhs, Buddhists and Jains are governed by Hindu Succession Act
1956, while Christians and Parsees are governed by the Indian Succession Act1925, but,
Muslim law is not codified in this respect.398

3.1. Hindu - Indian Constitution guarantees the principle of equality to all persons and
enshrines this principle in every part of the Constitution by prohibiting discrimination on
the basis of caste, creed and sex. But there is no uniform civil code in India. In the matter
of inheritance also, customary laws governed the Hindus.

The Hindu Succession Act 1956 was the first codified law which introduced a
comprehensive and uniform system of inheritance among Hindus, Buddhists, Jainas and
Sikhs. The Act has been given retrospective effect. The basic objective of the Act is to
remove gender discrimination in the property rights.

The important changes made by the Act regarding women’s rights - The
important changes made by the Act regarding women’s rights are (1) the limited estate
was converted to absolute one whether acquired before or after the commencement of the
Act399. It includes any property acquired by a female Hindu in lieu of her maintenance.400

397
Directory of S.C. and H.C.judgment-Ministry of women and child ;Source-
wcd.nic.in/research/directory%20of%20sc-hc%20judgements.doc Last visited June 12, 2012
398
Shruti Pandey; ‘Property Rights of Indian Women’ Ref.-
www.muslimpersonallaw.co.za/.../Property%20Rights%20of%20INdian%20Women.pdf , Last visited 13
th May2012.
399
Section 14, HSA, 1956

149
(2) Female heirs were recognized and the position of widow was strengthened. (3) The
principle of simultaneous succession of heirs of a certain class was introduced. (4) In
the case of the Mitakshara coparcenary, the principle of survivorship continues to apply.
But, if there is a female in the line, the principle of testamentary or intestate succession is
applied.401(5) Remarriage, conversion and unchastity are no longer held as grounds for
disability to Inherit.402(6) The right of the unborn child was recognized, even if he /she
was in the womb at the time of the death of the intestate and born subsequently.(7)An
unmarried woman, a widow or a woman deserted by or separated from her husband are
given the right of residence in her father’s home.403(8)Right of the concubine is also
protected in the property of her paramour. (9) The property of female Hindu who has
died intestate shall devolve in the following way404 (a) upon the sons, daughters (children
of predeceased sons and daughters) and husband.(b) upon the heirs of the husband.(c)
upon the father mother.(d) upon the heirs of the father.

The Hindu Succession Act, 1956 introduced many reforms and abolished the old
principle that a female heir takes only a limited estate. Under the old Hindu Law only the
‘stridhan’ was the widow’s absolute property and she was entitled to the other inherited
properties only as a life-estate with very limited powers of alienation. She was given
property rights in the estate of the deceased male Hindu also.405 The object is to remove
the disability of a female to acquire and hold property as an absolute owner. The
provision was retrospective in effect.406

The Hindu Succession Act 1956 had its own flaws like (a) it does not give the
right to the daughter of a coparcener in a Hindu joint family in the same manner as the
son. (b) Again, it says the rights of a daughter to claim partition of the dwelling house

400
Santosh v Saraswathibai AIR 2006 Kant 85
401
Section 6, HAS,1956
402
Sections -24, 26, and 28,HSA, 1956
403
However, the Amendment Act 2005 has abolished Section 23 of the Hindu Succession Act 1956 and
now all the daughters - married or unmarried have the same rights as sons to reside in and claim partition
in the dwelling house.
404
Section 15, HSA, 1956
405
Section 8, HSA, 1956
406
http://newcenturyindianlaw.blogspot.com/.../womens-right-to-property.html Last visited 20 th May,
2012

150
shall not arise until the male coparceners choose to divide their respective shares and the
daughter shall be entitled to a right of residence therein407.

The Hindu Succession (Amendment) Act, 2005 is a landmark. After 50 years, the
Government finally amended some gender biased provision in the Hindu Succession Act
1956. The Amendment Act 2005 covers inequalities on several matters. It has made the
following changes in section 6 of the Hindu Succession Act 1956 like

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005,
In a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener
shall (a) by birth become a coparcener in her own right the same manner as the son. (b)
have the same rights in the coparcenary property as that of a son. (c) be subject to the
same liabilities in respect of the said coparcenary property as that of a son. However, it
shall affect or invalidate any disposition or alienation including any partition or
testamentary disposition of property which had taken place before the 20th day of
December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of subsection (1)
shall be held by her with the incidents of coparcenary ownership and shall be regarded as
property capable of being disposed of by her by testamentary disposition.

(3) The Rule of Survivorship is abolished and now the property shall devolve either by
testamentary or intestate Succession and the coparcenary property shall be deemed to
have been divided as if a partition had taken place and (a) the daughter is allotted the
same share with son; (b) the share of the pre-deceased son or pre-deceased daughter,
shall be allotted to the surviving child of such pre-deceased son or pre-deceased
daughter; and (c) the share of the pre-deceased child of a pre-deceased son or
predeceased daughter shall be allotted to the child of such pre-deceased child of the pre-
deceased son or pre-deceased daughter, as the case may be. For the purpose of this sub-
section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in
the property.408

407
Section 23 the HSA, 1956
408
Section 6, HSA, 1956

151
 Thus, the Hindu Succession Act 2005 redrafted Section 6 of the Act and reads
that in a Joint Hindu family governed by Mitakshara law, the daughter of a Coparcener
shall become a Coparcener by birth and shall have the same rights and liabilities in
respect of the Coparcenary property. The Rule of Survivorship is abolished and now the
property shall devolve either by testamentary or intestate Succession. The daughters have
become the coparceners in the Mitakshara joint family property and can also claim
partition and become ‘Karta’ just like sons. All the daughters, married or unmarried will
have the same rights as sons to reside in the dwelling house. She can also claim partition
of the dwelling house.409

Other changes under the Act in the position of women-

(a) Earlier the female heir only had a deceased man's notional portion. With this
amendment, both male and female will get equal rights.
(b) Women can become kartas of the property. This symbolizes that daughters and sons
are equally important members of the parental family.
(c) Now under the amendment, daughters will now get a share equal to that of sons at the
time of the notional partition, just before the death of the father.
(d) Under the Amendment Act 2005, now all the daughters - married or unmarried have
the same rights as sons to reside in and claim partition in the dwelling house.

3.2. Muslim - Indian Muslims can be divided into two schools of thought Sunni and
Shia. The most of the Muslims in India, Pakistan, Afghanistan, and Turkey are governed
by Sunni school of thought. Only smaller part of the Muslim population follows Shia
school. Before 1937 Muslims in India were governed by customary law. After the
enactment of Shariat Application Act in 1937, Muslims in India came to be governed by
the Act in their personal matters.410

The general rule of inheritance under Muslim law has some distinct features-(i) a
Muslim is the absolute owner of property belonging to him (ii) the right of inheritance is
based on blood relationship (iii) the right to inherit the property first time opens on the
death of the person. (iv) the Quran gives specific shares to certain heir, the residue goes
to the residuaries and failing them to distant relation (v) bequests are limited to one-third
409
www.legalserviceindia.com/articles/kar.htm
410
See supra note 331 at p.132

152
of the estate (vi) no distinction is made between real and Personal property, nor between
ancestral and acquired property (vii) There is no difference between movable property
and immovable property.411

The Islamic law is very liberal towards women, which is evident from some rules
of succession in favour of women;(i) no distinction is made between males and females
(ii) the husband or wife was made an heir (iii) females and cognates were made
competent to inherit (iii) parents and ascendants were given the right to inherit even
when there were male descendants.412

However, the general rule of inheritance in Muslim law is that the female will get
the half of male. If we compare this rule with the legislations of another religion
concerning men and women, it may seem unfair. But, we have to understand the
rationale behind this rule, with the Assistant Professor;413 we must take into account the
fact that the financial obligations of men in Islam surpass those of women. Women in
Islam receive property mainly from three sources: inheritance, Mahr and maintenance.
On the other hand male receives double share from the first source i.e. inheritance only,
but they need to give Mahr to wives and maintenance to wives and other dependants. At
the time of marriage, a bride receives some gift from bridegroom. This gift is her
absolute property and she can control such property even if she is later divorced. On the
other hand, the bride has no responsibility to bear any family burden or to maintain any
dependant. This represents a guarantee of economic security from the husband towards
wife.414

The Hanafi jurists divide heirs into following categories; three principal and four
subsidiaries. The principle heirs are (1) Sharer (Quranic heirs). (2) Residuaries (Agnatic
heirs) and (3) Distant Kindred (Uterine heirs). The subsidiary heirs are (a) the successor
by contract, (b) the acknowledged relative, (c) the sole legatee and (d) the state by
escheat.

411
M.A.Qureshi; ‘On the text of Muslim Law’ Ist edition p. 329
412
See supra note 331 at p.132
413
Assistant Professor; Darul Ihsan University; “Inheritance law in Islam and women” ref.
http://www.wluml.org. Last visited on 21st May, 2012
414
Ibid.

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 The heirs mentioned in the Quran (12 heirs) are called Quranic heirs or sharers
(ashab al-furud). These heirs when entitled to inherit are given their fixed shares and the
remaining estate is inherited by the residuaries. Male Heirs – (1) Husband (2) Father (3)
True Grandfather how highsoever (4) uterine brother. Female heirs – (1) Wife (2) Mother
(3) True Grandmother how highsoever,(4) Daughter, (5)Son’s Daughter how lowsoever
(6)Uterine sister (7) Full sister,(8) Consanguine sister. However, the position of some of
these heirs may change. Then they become residuaries instead of sharers. The father of a
deceased person is mentioned as a sharer but if deceased leaves a son, the father will
become a residuary.

The residuaries are those who are entitled to the estate, if any, left after the
sharers have received their respective shares. This group comprises with all male agnates
and only four females (who are sharer but are converted into residuaries). Male agnates
include the son, the son’s son, the father, the brother, the paternal uncle and his son and
so forth. The female group contains four specified female agnates, namely, (1) daughter
(with son), (2) son’s daughter howsoever low (with equal son’s son howsoever low), (3)
full sister (with full brother) and (4) consanguine sister (with consanguine brother).
Under this system the rule that is followed is first the descendants, then the ascendants
and finally the collaterals. The agnatic heirs get their share when there are no Quranic
heirs or some residue is left after having dealt with the Quranic heirs.

Failing any Sharers or Residuaries, the next level of relations who would succeed
to the estate of a deceased Muslim male or female, are a class of persons known as
Distant Kindred. This class is constituted mainly by the female agnates and cognates.
There are two kinds of Distant Kindred to whom property devolves. First kind :
(1)descendants, which are daughter’s children and their descendants and children of
son’s daughters howsoever low and their descendants, (2) ascendants, which are false
grandfathers howsoever high and false grandmothers howsoever high, (3) collaterals,
which are descendants of parents and descendents of grandparents true as well as false.
Members of this class succeed only in the absence of members of Class I and Class II.
Second kind: The following persons are entitled to get inheritance on the failure of blood
relation: (1) Successor by contract. (2) Acknowledged kinsmen. (3) Universal legatees.
(4) The Government.

154
 However, the principle of succession proceeds upon the following principles: -
(1) Whoever is related to the deceased through another person shall not inherit while the
person is living. Though the father does not affect the share of any Quranic heir, but, he
can exclude the brother and sisters (full, consanguine or uterine) because they are related
to the deceased through father.
(2) Rule of propinquity (nearer in degree excludes the more remote): The person who is
nearer in blood to the deceased excludes the more remote. Thus, father excludes
grandfather, mother excludes grandmother, son excludes son’s son etc.
(3) A person excluded may exclude others: In a case where the survivors are the mother,
father, brother and sister: the brother and sisters are excluded by the father; and yet they
reduce the mother’s share to 1/6th because, the mother’s share is greatly affected by the
presence of children, existence of the husband or wife and the existence of father.

The husband and wife are most favoured heirs and cannot be excluded by
anyone. Law fixes the specific share for them. If they exist they reduce the residue of
Agnatic or Uterine heirs.415

Property rights through marriage :

(1) Mahr: The Supreme Court of India has laid down in Kapore Chand416, that the mahr
(dower) ranks as a debt and the widow is entitled, along with the other creditors of her
deceased husband, to have it satisfied out of his estate. Her right, however, is the right of
an unsecured creditor; she is not entitled to a charge on the husband’s property unless
there be an agreement. The Supreme Court has laid down that the widow has no priority
over other creditors, but that mahr as a debt has priority over the other heir’s claims. This
right is known as the widow’s right of retention.

(2) Will: There is a provision against hardship of the family members in the Islamic law
in that it is clearly provided that a Muslim cannot bequeath more than one third of his
property.417

415
See supra note331 at p.132
416
Kapore Chand v Kadar Unnissa Begum(1950 SCR 747),
417
www.muslimpersonallaw.co.za/.../Property%20Rights%20of%20INdian%20Women.pdf, Last visited
on 21st June 2012.

155
Shia Law - The Shias divide heirs into two groups (1) heirs by consanguinity i.e. blood
relation (2) heirs by marriage i.e. husband & wife.

The heirs by consanguinity can be divided into three categories. (1) This group
includes Parents, children and their descendants. (2)- This group includes grandparents
true or false, brothers and sisters and their descendants. (3) -This group includes paternal
& maternal uncle and aunts of the deceased. Of these three groups of heir, the first
excludes the second and second excludes the third from inheritance. There are nine
sharer under Shia law, like Husband, Wife, Father, Mother, Daughter, Full sister,
Consanguine sister, Uterine brother and Uterine sister. The descendant, how lowsoever
of sharer is also sharer. Thus, mother, daughter, daughter’s daughter, sister, grandmother,
paternal aunt, maternal aunt are included and are entitled to inherit. They are called
sharers. They take different shares depending on certain conditions like existence of
other sharers and relatives. Wife normally takes 1/8th share in the property of the
husband but husband takes 1/4th share in the property of the wife. Among shias, like
Distant Kindred of Sunni, there is no separate class of heir.

However, following persons are disqualified to inherit the property of the

deceased – (a)Non Muslim, (b)Murderer,(c) Child in the Womb,(d) Daughter by
custom,(e) Childless Widow, (f) Step parents and (g)Absent heir.

Islam modernized women’s inheritance rights. It is a very new concept even in

the West, but, Muslim females had received inheritance rights thirteen hundred years
before Europe recognized that such rights even existed. Actually, women’s position in
Islam is very high and suitable to her nature. She enjoys equal right with men but, in
some aspect it differs from men’s right. If she is deprived of one thing in any aspect, she
is absolutely compensated with other things. Islam is very conscious about her necessity.
Her rights match beautifully with her status.418

3.3. Christian- The laws of succession for Christians are laid down in the Indian
Succession Act, 1925. Sections 31 to 49 deal with Christian Succession rules.

418
Ibid.

156
 The Indian Christian widow’s right is not an exclusive one and can be curtailed
with the entry of other heirs. The widow of a Christian male takes a specified share,
which depends on who the other succeeding relatives of the deceased male are. Only if
the intestate has left none who are of kindred to him, the whole of his property would
belong to his widow. Where the intestate has left a widow and any lineal descendants,
one third of his property devolves to his widow and the remaining two thirds go to his
lineal descendants. If he has left no lineal descendents but has left persons who are
kindred to him, one half of his property devolves to his widow and the remaining half
goes to those who are of kindred to him.419If the deceased has not left behind a widow,
but only lineal descendants, then, the entire estate goes to the lineal descendants. Since
the lineal descendants exist, the presence or otherwise of the kindred is irrelevant.

The Travancore High Court, however, held that the Indian Succession Act would
have no application to the Christian women of the Travancore State in view of the
Travancore Christian Succession Act, 1916. Under the State Act, the daughter of a
person dying intestate would be entitled only to one-fourth of the son's share or Rs.
5,000/- (Stridhan) whichever is lesser. The application of the State Act was challenged in
the Supreme Court in the famous Mary Roy's Case420 The Court ruled that the Cochin
and Travancore Christian Succession Acts had ceased to be operative on the
reorganization of States and that automatically made the Indian Succession Act
applicable to all Kerala Christians bestowing on them equal inheritance rights.421

If the deceased has left behind only lineal descendants, then, the entire estate goes
to the lineal descendants. If the deceased has left behind neither a widow, nor any lineal
descendants, but only kindred, then, the entire property goes to the kindred. If the
deceased has left behind neither a widow, nor any lineal descendants, nor any kindred,
then, the entire property lapses to the Government. A widower has the same rights as a
widow (excepting the risk of being excluded by a cleverly drafted pre-nuptial
agreement).

419
Section 33 ISA 1925
420
Mary Roy Vs. State of Kerala, AIR 1986 SC 1011; 1986(2) SCC 209
421
http://EzineArticles.com/1406148

157
 The rule of sharing as between lineal descendants is also important. If all the
lineal descendants are children, then, they will receive equal shares in the estate (after
deduction of the share of the widow, if any). Likewise, if there are no children but only
grandchildren, then, all grandchildren will take shares equally.

If a deceased has left behind no lineal descendant but only a father and other
kindred (such as mother, brother, sister etc.), then, the father succeeds to the entire
property (subject of course to the share of the widow, if any). Only in case the father of
the intestate is dead but mother and brothers and sisters are alive, they all would share
equally. If the intestate’s father has died, but his mother is living and there are no
surviving brothers, sisters, nieces, or nephews, then, the entire property would belong to
the mother.422

3.4. Parsi - Sections 50 to 56 of the Indian Succession Act1925 contains the provisions
for the devolution of property of a Parsi intestate. However, some important rules
regarding the intestate succession of Parsis are – (a) there is no distinction between those
who were born and those who were conceived in the womb. (b) If an intestate dies
without leaving a widow or widower or any lineal descendant the property shall be
divided. (c) Where a widow of intestate has married again she shall not be entitled to
receive any share of the property.423

If a male Parsi dies leaving a widow and children among the widow and children,
so that the share of each son and of the widow shall be double the share of each daughter
or where a male Parsi dies leaving children but no widow, among the children, so that
the share of each son shall be double the share of each daughter. Where a male Parsi dies
leaving one or both parents, in addition to children or a widow and children, the property
shall be divided in such a way, so that the father shall receive a share equal to half the
share of a son and the mother shall receive a share equal to half the share of a
daughter.424

422
Section 46, ISA 1925
423
Section 50, ISA 1925
424
Section 51, ISA 1925

158
 If a female Parsi dies leaving a widower and children the property shall be
divided among the widower and children so that the widower and each child receive
equal shares; or where a female Parsi dies leaving children but no widower, among the
children in equal shares.425

When a Parsi dies leaving any lineal descendant and if any child of such intestate
has died in the lifetime of the intestate, the division of the share of the property of which
the intestate has died intestate which such child would have taken if living at the
intestate’s death shall be divided, if such deceased child was a son, among his widow and
children as if he had died immediately after the intestate’s death. But where such
deceased son has left a widow or a widow of a lineal descendant but no lineal
descendant, the residue of his share after such distribution shall be divided in accordance
with the provisions of this Chapter as property of which the intestate has died intestate,
and in making the division of such residue the said deceased son of the intestate shall not
be taken into account.

If such deceased child was a daughter, her share shall be divided equally among
her children. If any child of such deceased child has also died during the lifetime of the
intestate, the share which he or she would have taken if living at the intestate’s death,
shall be divided in like manner in accordance with clause (a) or clause(b) as the case may
be.

Where a Parsi dies without leaving any lineal descendant but leaves a widow or
widower or a widow of a lineal descendant, his widow or her widower shall receive one-
third of the said property and the widow of any lineal descendant shall receive another
one-third, or if there is more than one such widow, the last mentioned one-third shall be
divided equally among them. And if the intestate leaves no widow or widower but one
widow of a lineal descendant, she shall receive one-third of the said property, if the
intestate leaves no widow or widower but more than one widow of a lineal descendant,
two-thirds of the said property shall be divided among such widows in equal shares.426

425
Section 52, ISA 1925
426
Section54, ISA 1925

159
 The residue shall be distributed among the relatives of the intestate in the order
specified in Part I of Schedule II.427And if there are no relatives, the residue shall be
distributed in proportion to the shares specified.

When a Parsi dies leaving neither lineal descendants nor a widow or widower nor
a widow of any lineal descendant, his or her next of kin shall be entitled to succeed to the
whole of the property in the order set forth in Part II of Schedule II.428 If there is no
relative entitled to succeed to the property of the intestate, the said property shall be
divided equally among those of the intestate’s relatives who are in the nearest degree of
kindred to him.429

In the final decree of divorce under this Act, the Court may make such provisions
as it may deem just and proper with respect to property presented at or about the time of
marriage which may belong jointly to both the husband and wife.430

In any case, When the Court shall pronounce a decree of divorce or judicial
separation on the ground of adultery of the wife, if it appears to the Court that the wife is
entitled to any property, the Court may order for reasonable settlement of such
property.431 Prima facie the property rights of the Parsis are quite gender just. Basically,
a Parsi widow and all her children, both sons and daughters, irrespective of their marital
status, get equal shares in the property of the intestate while each parent, both father and
mother, get half of the share of each child.

From the above discussion we can say that regarding property rights the position
of Hindu women is better in comparison with other women. Hindu Women enjoy equal
right in the matter of property right with men. Recently, a bill is pending in the
legislature regarding the right of Hindu women to get share in the husband’s property at
the time of divorce. To achieve actual equality in inheritance, the Hindu laws have been
amended several times.432

427
Part I of Schedule II, ISA 1925
428
Section 55, ISA 1925
429
Section 56, ISA 1925
430
Section 42, PMDA 1936,
431
Section 50, PMDA 1936
432www.legalserviceindia.com/articles/kar.htm

160
 Muslim Personal Law does not recognize the concept of self-acquired or
ancestral property. Women under Islam are considered competent heirs and inherit
property absolutely in their own right. There is no concept of a limited estate of a widow
in Islam and the rights of women are not restricted merely to that of maintenance.

Regarding ancestral property both Christian men and women enjoy equal right.
The property of a dying intestate will devolve upon the heirs in such a way so that the
spouse will get a 1/3rd share and the children will get a 2/3rd share.

On the death of a parsi the entire estate is divided equally among the widow or
widower, whoever survives the deceased and the children.

4. Law relating to Adoption Right of Women - In the matter of

adoption also almost all the communities are guided by their personal law. Hindus are
governed by the Hindu Adoptions and Maintenance Act, 1956. Other communities do
not have any specific legislation, but they are governed by their own customary laws.

4.1. Hindu Law - Hindus desire to have a son as indispensable for religious
performances. If they fail to get natural son the Hindu Adoptions and Maintenance Act,
1956 enables him to adopt somebody else’s child as his own. Under this Act a female
Hindu is also capable to take a son or daughter in adoption. However, for the valid
adoption all person adopting, the person giving in adoption and the person adopted all
should be competent in the eyes of law.433 In Chandan Bilasini dasi case, 434
the Court
held that for valid adoption performance of the ceremony of giving and taking is
important.

Any male Hindu who is of sound mind and is not a minor has the capacity to take
a son or daughter in adoption.435 But, if his wife is living, he shall not adopt except with
consent of his wife.

433
Section 6, HAMA1956
434
Chandan Bilasini dasi by L.Rs vs. Allabuddin Khan AIR1977 Ori 69
435
Section 7, HAMA,1956

161
 Any female Hindu, who is of sound mind, who is not a minor and who is not
married, or if married whose marriage has been dissolved or whose husband is dead or
has renounced the world or ceased to be Hindu or of unsound mind, has the capacity to
take a son or daughter in adoption.436

No person except the father or mother or the guardian of a child shall have the
capacity to give the child in adoption. Where both the father and mother are dead or have
completely and finally renounced the world or have abandoned the child or have been
declared by a Court of competent jurisdiction to be of unsound mind or where the
parentage of the child is not known, the guardian of the child may give the child in
adoption with the previous permission of the Court to any person including the guardian
himself. Before granting permission of a guardian, the Court shall be satisfied that the
adoption will be for the welfare of the child.

Regarding the adoptive person the Act says that no person shall be capable of
being taken in adoption unless he or she is a Hindu ,he or she has not already been
adopted, he or she has not been married unless there is a custom or usage applicable to
the parties which permits persons who are married being taken in adoption ,he or she has
not completed the age of fifteen years, unless there is a custom or usage applicable to the
parties which permits persons who have completed the age of fifteen years being taken in
adoption.437

Conditions for a valid adoption are that if the adoption is of a son, the adoptive
father or mother by whom the adoption is made must not have a Hindu son, son’s or
son’s son’s son (whether by legitimate blood relationship or by adoption) living at the
time of adoption or if the adoption is of a daughter, the adoptive father or mother by
whom the adoption is made must not have a Hindu daughter or son’s daughter (whether
by legitimate blood relationship or by adoption) living at the time of adoption. And if the
adoption is by a male and the person to be adopted is a female, the adoptive father is at
least twenty-one years older than the person to be adopted and if the adoption is by a
female and the person to be adopted is a male, the adoptive mother is at least twenty-one
years older than the person to be adopted. The same child may not be adopted

436
Section 8, HAMA,1956
437
Section 10, HAMA,1956

162
simultaneously by two or more persons. The child to be adopted must be actually given
and taken in adoption by the family of its origin.

An adopted child shall be deemed to be the child of his or her adoptive father or
mother for all purposes with effect from the date of adoption and from such date all the
ties of the child in the family of his or her birth shall be deemed to be severed and
replaced by those created by the adoption in the adoptive family. However, the child
cannot marry any person whom he or she could not have married if he or she had
continued in the family of his or her birth. In case of any property which vested in the
adopted child before the adoption shall continue to vest in such person subject to the
obligation, if any, attaching to the ownership of such property, including the obligation
to maintain relatives in the family of his or her birth .the adopted child shall not divest
any person of any estate which vested in him or her before the adoption.438 But, subject
to any agreement to the contrary, an adoption does not deprive the adoptive father or
mother of the power to dispose off his or her property by transfer inter vivos or by will.

Where, a Hindu who has a wife living adopts a child, she shall be deemed to be
the adoptive mother. And if the adoption has been made with the consent of more than
one wife, the senior most in marriage among them shall be deemed to be the adoptive
mother and the others to be step-father of the adopted child. A bachelor can also adopt a
child but, subsequently if he marries any woman, she shall be deemed to be the step-
mother of the adopted child. Where a widow or an unmarried woman adopts a child, any
husband whom he marries subsequently shall be deemed to be the step-father of the
adopted child.439

No adoption which has been validly made can be cancelled by the adoptive father
or mother or any other person, nor can the adopted child renounce his or her status as
such and return to the family of his or her birth.440

Whenever any document registered under any law for the time being in force is
produced before any Court purporting to record the adoption made and is signed by the

438
Section 12, HAMA,1956
439
Section 14, HAMA,1956
440
Section 15, HAMA,1956

163
person giving and the person taking the child in adoption, the Court shall presume that
the adoption has been made in compliance with the provisions of this Act unless and
until it is disproved.441

The Act prohibits receiving of any payment or other reward in consideration of

the adoption of any person, otherwise he shall be punished with imprisonment which
may extend to six months, or with fine, or with both.442

4.2. Muslim Law - Adoption is not known in Muslim Law either as a mode of
filiation or otherwise. But, sometimes, custom permits a Muslim to adopt a child. In this
case Muslim law has given priority to the customary law over the Rules of Mohamedan
Law. Thus, a special family or tribal custom of adoption will be given effect to within
the provisions of The Muslim Personal Law (Shariat) Application Act, 1937, which also
permits a muslim to appoint an heir called Pissar Parwardah for the purposes of
inheritance. Islam does not acknowledge adoption. In Mohammed Allahabad Khan443 it
was held that there is nothing in the Mohammedan Law similar to adoption as
recognized in the Hindu System. Acknowledgement of paternity under Muslim Law is
similar like adoption. The main difference between the two can be stated that in
adoption, the adoptee is the known son of another person, while one of the essentials of
acknowledgement is that the acknowledgee must not be known son of another. However,
a Muslim can adopt a child from an orphanage by obtaining permission from the court
under Guardians and wards act.

4.3. Parsi and Christian Laws - The personal laws of Parsi and Christian
communities also do not recognize adoption and they can adopt child by obtaining
permission from the court under Guardians and wards Act 1890. Christians can take a
child under the said Act only for foster care. Once a child becomes major, he is free to
break away all his connections. Such a child does not have legal right of inheritance. The
Guardians and Wards Act, 1890 clearly lays down that father is the primary guardian and
if the father is not unfit, no other person can be appointed as guardian. This Act also says

441
Section 16, HAMA,1956
442
Section 17, HAMA,1956
443
Mohammed Allahabad Khan v. Mohammad Ismail (1888) ILR 10 All 289

164
that the welfare of the child the primary consideration of the Court while appointing a
guardian under the Act.444

Thus, in the matter of adoption mother has no right. Father is the primary
decision maker in this regard. In case of Hindu law, if a male wants to adopt a child,
permission of the wife is must. But, wife herself can’t adopt a child with the permission
of the husband. In case of Muslim, Christian and Parsi, in the absence of their own laws,
Guardians and Wards Act, 1890 says that father is the primary guardian and if the father
is not unfit, no other person can be appointed as guardian. It is a matter of great surprise
that these unequal laws exist even in the present day.

5. Guardianship and Custody Rights of Women- The matter of

guardianship of a child is also governed by personal law. The question of child custody
comes when the parents of a minor child gets separated by divorce or dies. For the better
protection of the child and to fulfill his/her basic necessities law comes to deal with the
matter.

The Hindu and Christian personal law considered the father as the natural
guardian of the minor and it is only after the father, the mother is considered as the
guardian. But, the mother is the natural guardian of a minor up to the age of 5 years
under Hindu law. In Muslim personal law also the mother is considered as the natural
guardian of a minor below the age of 5 while the father is considered the guardian above
that age.

Today, the law of child custody has changed radically. Primarily, it was decided
keeping in mind the rights of the parents, but now the object of the legislation is the
welfare of the child. However, today, several international conventions and child rights
movements, has also been giving emphasis on the recognition of the identity of the child
as an individual. Thus the custody of the child generally decided on the basis of the two
factors i.e. welfare approach and wishes expressed by a child.

444
www.legalserviceindia.com/articles/hmcp_adopt.htm. Last visited on 22nd May, 2012

165
 The Courts have often taken an activist approach. In the case of Gaurav Jain
445
case , the Supreme Court answered the question as to what procedure is effectual to
prevent exploitation of sex workers and to bring them and their children into the social
mainstream by giving care, protection and rehabilitation.

In the Gita Hariharan446 case the Supreme Court expanded the definition of
Natural Guardian of the Hindu Adoption and Maintenance Act and declared that the
mother can also act as the natural guardian like father.

In the matter of guardianship, women were not given any right. Law always
considered mother as the secondary guardian. Under Hindu and Christian law her
position is after father, but Muslim law recognizes the right of the mother up to the 5
years of the child. Under Parsi law also father is the natural guardian. These types of law
should be amended. The S.C.’s decision in Gita Hariharan case is not ground breaking,
but it is just.

In India the matter relating to marriage, divorce, maintenance, adoption,

guardianship and inheritance are regulated by personal laws. However, for the vigilant
eye of the legislature and judiciary there has been continuous development of personal
law by amendment and judicial interpretation which has made them more open-minded.
The concept of marriage and divorce has already been liberalized. Now, women of all
communities can seek maintenance under Section 125 of the Code of Criminal
Procedure. Regarding property rights the position of Hindu women is better in
comparison with other women. In the matter of adoption and guardianship, mother has
no right; father is the primary decision maker. Mother can act as the natural guardian
only up to the age of 5 years of the child. The position of Hindu women is to some extent
better in comparison to the women of other communities.

Thus the place of women under personal law is discriminatory. In every matter,
personal law treats the women with inequality. Men are given higher position and
women are looked as inferior to them. In every respect they have to depend upon men.
Only solution to this problem is the enactment of the uniform civil code.

445
Gaurav Jain vs.Union of India and Others (1997) 8 Supreme Court Cases 114
446
Gita Hariharan v. Reserve Bank of India 1999 2 SCC 228

166
 PART-IV
Law relating to Working Women

Indian constitution guarantees every citizen the equality of opportunity in the

matter of employment. Alas, even after 65 years of independence the true equality is still
a long cherished dream to us. The women have already proved themselves by acquiring
all the important posts which were formerly considered exclusively for men. The age old
differentiation between men and women regarding the working sphere has shattered.
This development has two aspects, one way it enhanced the status of women and on the
other it brings many problems with it like exploitation, discrimination, torture and sexual
harassment at workplace etc.

The constitution of India ensures the safety and security of working women by
introducing several provisions in the constitution. Working women can enjoy these
safeguards through several protective legislations. Special enactments for working
women are– Workmen’s Compensation Act, 1923, the Factories Act, 1948, the
Employees’ State Insurance Act, 1948, the Mines Act, 1952, the Equal Remuneration
Act 1976, the Plantation Labour Act, 1981 and the Maternity Benefit Act, 1961 etc.

Indian Constitution provides that state shall endeavour to secure human condition
of work, living wage and a decent standard of life to all workers.447 The collective effect
of these two Articles is that the state is under obligation to provide by suitable legislation
just and human condition of work in various industries and also provide maternity
benefit to women. Accordingly Maternity Benefit Act 1961 and Employees’ State
Insurance Act 1948 provide maternity benefits for women. The Employees’ State
Insurance Act says that an insured woman is entitled to maternity benefit in case of
pregnancy, confinement or child birth or miscarriage if it is certified that she is eligible
for such payment.448 There are other provisions also regarding sickness, maternity
disablement and workmen’s compensation. The Factories Act provides that no woman
shall be required or allowed to work except between the hours of 6 am and 7 pm.449These

447
Articles 42 and 43,Indian constitution.
448
Section 46 (b) ESIA, 1948
449
Section 66 (1)(b) F.A, 1948

167
limits may be varied by the State Government but no variation shall be authorized for
employment of woman between 10 pm and 5 am. Also there shall be no change of shifts
except after a weekly holiday or any other holiday.450 The Factories Act also provides
that no women or young person shall be allowed to clean lubricate or adjust (a) any part
of prime mover or of transmission machinery while in motion, or (b) any part of a
machine if such work is likely to expose the woman or the young person to risk of injury
from any moving part of that machine or any adjacent machine.451

The employment of any women or child for pressing cotton in a factory in which
a cotton opener is at work is prohibited under the Factories Act.452 The same Act
imposes a statutory obligation on the employers to provide the crèche facility for the
children of working women.453 The Mines Act, 1952 also provides some special
provision for the protection of working women. Under the Act no woman shall be
employed in any part of mine, which is below ground.454 The ‘Bedi’ and ‘Cigar’ workers
(Conditions of Employment) Act, 1966 also provides number of benefits to the woman
employees. Under Section 25 of the Act no women or young person shall be required to
work in any industrial premises except between 6 am and 7 pm.455 It also provides for the
maternity benefit to women workers in manufacturer of beedi and cigar.456

1. Women in the Unorganised Sector - The International Labour Organisation

says that women represent 50% of the population, 30% of the labour force, perform 60%
of all working hours, receive 10% of the world’s income, own less than 1% of the
world’s property. Mostly high class women show reluctance to do jobs outside. Work
participation rate is higher among rural women (27%) than the urban women
(10%).These women are generally employed in agricultural activities and in the
unorganised sector. In 2005, for the first time, agriculture was not the main sector of
employment for women and this trend continued in 2006 also. Now, women are
employed in the service sector mostly. Of the total number of employed women in 2006,
40.4 per cent work in agriculture and 42.4 per cent in services.In the unorganised sector

450
Section 66(1)(c) F.A,1948
451
Section 22(2) F.A,1948
452
Section 27 F.A,1948
453
Section 48 F.A.1948
454
Section 46,M.A.1952
455
Section 25,BCWA 1966
456
Section 37 BCWA 1966

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women are employed to work as a part time helpers in households, construction center,
tanneries (setting, parting and drying), match and beedi industries etc. The most dismal
situation faced by the working class in the modern era is the increasing threat to job
security. The unorganised sector is fast growing, while the organised sector is declining.
Security is no longer the condition of the job. The demand of temporary or part-time jobs
and home based work are increasing. Women usually go in for temporary jobs because
of their extra responsibility to manage household matters. Though there is no expressed
provision that labour laws would not be applied in the unorganized sector, but it is an
implied rule in practice. Thus the workers of this sector are practically at the benevolence
of the employers. Our governments have not shown any interest to protect the interests of
the workers of the unorganized sector. A large number of workers of informal sector are
women, who have no job security. The Work may be unskilled or low skilled but they
have to perform such work that requires involvement for long hours, which generally
affects their reproductive health. As it is not always possible for a women to involve in
her job seriously because of the child caring and household duties, their job is considered
unskilled and less productive and on that basis women are habitually paid lower wages,
despite the fact that they work harder and for longer hours than men.

The Factories Act, The Mines Act, The Dock Workers’ Act etc. control the
provisions regarding the health of the workers of an organization. But in the unorganised
sector where the most of the workers are women, no facility, no safety measures, and no
health safeguards are available to them.

The domestic workers are the most oppressed group among women working in
the unorganized sector. It provides large employment but workers of this unorganized
sector are mostly neglected. Generally female domestic workers are favoured in
comparison with male for doing household duties. Adjustive mentality and reliable
nature of the Women especially girl are very acceptable to the employer. They are also
ready to accept low wages.

The news regarding the exploitation of domestic workers in the hands of the
employer is reported regularly. There is no law to regulate the working conditions of this
class. Thus, domestic workers are routinely subjected to abuse. For the last few years

169
there has been an incredible growth in the demand for domestic workers with the
increase of the working propensity of women. To meet this growing demand, domestic
workers are supplied through trafficking and other forms of exploitation. Many
placement agencies are also set up to supply the domestic workers in metro-towns of
many states. These hubs are also become the source of exploitation of the domestic
workers in various ways.457

However, many attempts have been made to organize these sectors by several
authorities. Some trade unions or associations were formed by some domestic workers
themselves to regulate law relating to their working condition. AIDWU (All India
Domestic Workers Union) is the first trade union, established to deal with the problem of
domestic workers in Delhi. Similarly some other trade unions or associations of domestic
workers are also established in Mumbai and in Kolkata. Self-help group, media,
politician are also very much conscious regarding the problem of domestic workers.
Many legislation are regularly drafted and introduced in the parliament, many seminars,
strikes, protest for the protection of the domestic workers have been made but no fruitful
result has yet come.458

Child Labour (Prohibitions & Regulation ) Act, 1986 prohibits the employment
of the child domestics, but it can’t be implemented in the absence of any implementation
mechanism under the Act. Recently, few State Governments have taken different
initiative. Some suggestion were also given regarding that the provisions of the Industrial
Disputes Act 1947 be made applicable to Domestic workers with the stipulation of a
minimum wage, limited working hours, rest period etc. but, in the absence of a central
legislation state level measures can’t not really benefit the domestic workers That only a
Complete Central Legislation exclusively designed to meet the working condition of the
domestic workers including registration can guarantee the end of the exploitation of
these domestic workers.459

457
http:// ncw.nic.in/pdfReports/sexualharassmentatworkplacebill2005_Revised.pdf, Lat visited on 22 nd
May 2012.
458
N.K Chakrabarti,. and Shachi, Chakrabarti “Gender Justice” ; Kolkata, R. Cambray & Co. Private Ltd.
(2006)
459
http://ncw.nic.in.

170
2. Sexual harassment of women at work place - Sexual harassment at
working place is the most important problem of working women which creates a
blockade to women’s equal right to employment. It generates a tension in the mind of the
victim.

There is no specific law and strategy in India to regulate the law relating to
Sexual harassment at working place. While dealing with the cases of Sexual harassment
at work place, the Courts in India generally rely on Section 354 and Section 509 of IPC.
But, the safeguards available under these two sections are not sufficient to defend the
interest of working women. The Indecent Representation of Women (Prohibition) Act
(1987) says that if an individual harasses another with books, photographs, paintings,
films, pamphlets, packages, etc. containing the “indecent representation of women”, he
will be liable to be punished for a minimum sentence of 2 years. The Act lays down the
punishment for companies where there has been an “indecent representation of women”
(such as the display of pornography) on the premises, guilty of offenses under this act,
with a minimum sentence of 2 years.460 A civil suit can also be filed for damages under
tort laws for mental anguish, physical harassment, loss of income and employment
caused by the sexual harassment.461

In absence of adequate legislation regarding sexual harassment the Hon’ble

Supreme Court has defined sexual harassment and gives Principles and guidelines to be
followed in Vishaka case.462 It was for the first time sexual harassment had been legally
defined as an unwelcome sexual gesture or behaviour whether directly or indirectly
which includes sexually coloured remarks, physical contact and advances showing
pornography, a demand or request for sexual favours, any other unwelcome physical and
verbal/non-verbal conduct being sexual in nature etc.

The Supreme Court for the effectual enforcement of basic human rights, gender
equality and for guarantee against sexual harassment laid down the following
guidelines:

460
Section 7, IRWA 1987
461
http://www.legalserviceindia.com/articles/rape_laws.htm An Aricle by Dhruv Desai,”Sexual
harassment and Rape laws in India.Last visited on 17th May, 2012
462
Vishaka Vs. State of Rajasthan AIR1997

171
1. All the employers in charge of work place whether in the public or the private sector,
should take appropriate steps to prevent sexual harassment without prejudice to the
generality of his obligation; he should take the following steps:
(a) Express prohibition of sexual harassment which includes physical contact and
advances, a demand or request for sexual favours, sexually coloured remarks, showing
pornographic or any other unwelcome physical, verbal/ non-verbal conduct of sexual
nature should be noticed, published and circulated in appropriate ways.
(b) The rules and regulations of government and public sector bodies relating to conduct
and discipline should include rules prohibiting sexual harassment and provide for
appropriate penalties in such rules against the offender.
(c) As regards private employers, steps should be taken to include the aforesaid
prohibitions in the Standing Orders under the Industrial Employment (Standing Orders)
Act, 1946.
(d) Appropriate work conditions should be provided in respect of work leisure, health,
hygiene- to further ensure that there is no hostile environment towards women and no
woman should have reasonable grounds to believe that she is disadvantaged in
connection with her employment.
2. Where such conduct amounts to specific offences under the Indian Penal Code or any
other law the employer shall initiate appropriate action in accordance with the law, by
making a complaint with the appropriate authority.
3. Victims of sexual harassment should have the option to seek transfer of the
perpetrator or their own transfer.

These guidelines are applicable to (a) the employer or other responsible persons
or other institutions to prevent sexual harassment and to provide procedures for the
resolution of complaint. (b) Women who either draw a regular salary, receive an
honorarium, or work in a voluntary capacity- in the government, private or organized
sector come under the purview of these guidelines.

Preventive Steps for the eradication of sexual harassment are (1) express
prohibition of sexual harassment should be notified and circulated. (2) Inclusion of
prohibition of sexual harassment in the rules and regulations of government and public
sector (3) Inclusion of prohibition of sexual harassment in the standing orders under the

172
Industrial Employment (Standing Orders) Act, 1946 by the private employers. (4)
Provision should be made for appropriate work conditions for women.

Procedure of filing complaints - Employers must provide a Complaints

Committee which is to be headed by a woman; of which half members should be
women. Complaints Committee should also include an NGO or other organization-
which is familiar with sexual harassment. Complaints procedure should be time bound.
Confidentiality of the complaints procedure has to be maintained. Complainant or
witnesses should not be victimized or discriminated against- while dealing with
complaints. The Committee should make an annual report to the concerned Government
department and also inform of the action (if any) taken so far by them.

However, the SC further stated that “The guidelines and norms would be strictly
observed in all workplaces for the preservation and enforcement of the right to gender
equality of the working women. These directions would be binding and enforceable in
law until suitable legislation is enacted.” A K.Chopra case463 is the first case in which the
Supreme Court applied the law laid down in Vishaka case and upheld the dismissal of a
superior officer of the Delhi based Apparel Export Promotion Council who was found
guilty of sexual harassment of a subordinate female employee at the place of work on the
ground that it violated her fundamental right guaranteed under Article 21 of the
Constitution of India.464

The Supreme Court further stated that “That sexual harassment at the place of
work, result in violation of the fundamental right to gender equality and the right to life
and liberty – the two most precious fundamental rights guaranteed by the Constitution of
India.” And also says that " In cases involving Human Rights, the Courts must be alive
to the International Conventions and Instruments as far as possible to give effect to the
principles contained therein- such as the Convention on the Eradication of All forms of
Discrimination Against Women, 1979 [CEDAW] and the Beijing Declaration directing
all state parties to take appropriate measures to prevent such discrimination."

463
Apparel Export promotion Council v. A.K. Chopra (1991) 1SCC 759
464
See Supra note 461 at p.171

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 Thus the directions of the S.C. regarding sexual harassment have recognized it as
use of power by the perpetrator on the victim. It is not only a violation of the right to safe
working conditions, but also a violation of the right to bodily integrity of the woman.465

In spite of all these legislations working women are still in some disadvantageous
position. Legislative guidelines are not maintained strictly in several industrial sectors.
Women agricultural workers are at worst position. In most of the cases the unorganized
women work force do not get the equal remuneration to that of their male counterparts,
even for the same type of works involving same skill and efforts. Several welfare
provisions of the labour legislations fail to provide safeguards to the workers even in the
organised sector. Generally the wellbeing provisions are made keeping the safety and
security of male workers in mind and thus it does not suit women workers. Thus women
workers have to face troubles and constraints related to their work both in the organized
and unorganized sector such as lack of stability, diffidence, wage discrimination,
unhealthy job relationship, absence of medical and accident benefit etc.466

PART –V
Law relating to Domestic Violence

Physical violence on women at home is not a new issue, it has been continuing
since time immemorial. But presently people became aware of the violence occurred in
the family. Now Research report says that the family is the most violent institution. It is
the manifestation of patriarchal attitude to control the women according to their whims.
Violence starts from minor offences like pulling hair, pinching pushing, hitting etc.
before the deadly attack. Patient nature of women often encourages the male or female
oppressors to become more and more violent. Repeated violence on women destroys her
self reliance, skill, efficiency and makes her fussy.

There are number of provision in our existing laws which can regulate the
offence relating to domestic violence in India. Our Constitution ensures equality for all
under Article 14, 15 and 16 it ensures special provisions for the protection of women

465
See Supra note 461 at p.171
466
www.legalserviceindia.com/.../l432-Condition-of-Women-Working-In-the-Unorganised-Sector.html

174
under Article 15(3) of the Constitution. Article 21 of the Constitution of India reinforces
right to life, which gives meaning to a person’s life to live with dignity, which includes
economic, social, cultural and political rights equally with men. The Directive Principles
of State Policy includes many directives to the State to improve the status of women and
for their protection. Article 51 A (e) provides a fundamental duty that it is the duty of
every citizen to renounce practices derogatory to the dignity of women. On the other
hand Human Rights Act provides that human rights means right relating to life, liberty,
equality and dignity of the individual guaranteed by the constitution or embodied in
International Covenant and enforceable by the courts in India.467

Indian Penal Code also deals with the issue of domestic violence. Section 304 B
punishes for the Dowry Death. Sections 312-318 deal with the offence of causing
miscarriage. Under section 366 Kidnapping, Abduction or inducing women to compel
for marriage are also punished. Section 354 punishes for the offence of outraging
modesty of women. Using criminal force is also punishable under section under 350 of
IPC. Section 375 defines and punishes the offence of rape makes it an offence. Section
317 of IPC provides that any person having the care of a child below 12 years of age,
exposes or leaves such child with the intention to abandon the child is punishable with
imprisonment which can be extended up to seven years or with fine or with both. Selling
minor for the purposes of prostitution is also punished under Section 372 with
imprisonment which can be extended up to 10 years with fine. Sections 299, 300 and
304A punish offences relating to homicides, which includes infanticide. Sections 299
and 300 deal with the offence of culpable Homicide and murder respectively and
punishment for these offences can be extended to death sentence but not less than 10
years. But Section 304A deals with less serious type of offence i.e. death by negligence
or accidental death the offender shall be punished with imprisonment which can be
extended to two years or with fine or with both. Suicide and abetment of suicide is also
prohibited by IPC under Section 305 and 306 of The provision of section 498A is very
much relevant in the context of domestic violence but because of its specificity to dowry
it ignores other factors of violence.468

467
Himansu Bhatia; “ Domestic Violence Against Women: A severe Violation of Human Rights” Cri.L.J
October, 2011
468
http://domesticviolenceact2005india.in /Last visited on June 25th 2012.

175
 Special Legislation for Women also deal with the offence of domestic violence in
India like the prevention of Immoral Traffic Act, 1986, the Dowry Prohibition Act, 1961,
Maternity Benefit Act, 1976, the Indecent Representation of Women (Prohibition Act,
1986), the Commission of Sati (Prevention) Act, 1987, the Pre-Natal Diagnostic
Techniques (Regulation and Prevention of Misuse) Act, 1994, Protection of Women
from Domestic Violence Act 2005 etc.

The growing concern for the violence against women’s issues has enforced many
Governments to revise the problems and to take some actions. Indian Governments also,
they enacted National Commission for Women Act, 1990, Human Rights Act, 1993, etc.
for the formation of Commissions to look after the women related issue.

Despite the existence of these legislations, the laws relating to domestic violence
were inadequate. Actually most of the provisions are applicable to valid marriages only.
Though criminal law prosecuted and punished the perpetrator of domestic violence, but
the matters relating to the women’s requirement for shelter, maintenance, custody of
children and compensation linger untouched. Compromise is not possible under Criminal
law. The matrimonial disputes generally solved through lengthy legal process under
other legislation but, it gives quick relief to the victim. There was no law which
empowers the courts to issue orders and injunctions restraining domestic violence or to
give monetary relief to the aggrieved women. Domestic violence was not treated as an
independent offence. Women had to move towards different courts for different remedies
and no law for so long time recognizes women’s right to residence in their matrimonial
homes which this law does.469

This act is no doubt exceptional in many respects. It gives quick relief to the
victim. This act gives a broad meaning to a domestic relationship and aggrieved persons.
Violence in a “live in relationship” has also been recognized under the Domestic
Violence Act.

Important features of the Act -The Act aims to liberate the life of women from
domestic violence. Domestic violence is regarded as the violation of human rights of

469
See Supra note 467 at p.175

176
women under the Act. It is a comprehensive law and includes all aspects related to
women. In addition to physical violence of beating, slapping, hitting, kicking and
pushing, the Act also covers sexual, mental, emotional and economic violence and child
sexual abuse. It also ensures the right of women to reside in the matrimonial home and
protect her from becoming an impecunious.470 This Act provides a single and speedy
remedy system where multiple needs for a woman can be addressed through a single
litigation in a court. This Act also introduced many support system for the victim through
shelter, counseling and medical support by giving protection order, residence order,
custody order etc. The remedy under this law is available as an additional protection with
other existing matrimonial and criminal law on domestic violence not in derogation of
any other law.471

472
In Vandana case Court said that “From the development of the law on the
point, over the years, culminating in the aforesaid enactment, it appears, that the right of
a woman to live in the shared household, originally conceived as a part of her right to
maintenance, has enlarged with the advent of the Act.” It suggests the passing of
protective and ameliorative orders of civil Courts, calculated to preserve the status quo
for the benefit of women.473 Section 17 introduces the right of every woman in a
domestic relationship to reside in the shred household, whether or not she has any right,
title or beneficial interest in the same. Domestic Violence has been defined in a wide
way. It includes mental, physical, sexual, verbal and economic abuse. Dowry related
harassment and torture for unlawful demands of dowry is also included within the
definition. The concept of domestic violence has been extended from physical hurt to
emotional shock and to economic exploitation. It protects a wife from sexual abuse by
her husband.

This law gives protection to women who are in “live-in-relationship”. This is a

revolutionary protection as it is against the traditional concept of marriage and earlier
court verdict, which state that long periods of cohabitation between a man and a woman
raise a presumption of marriage. “The Act applies even when there is consensual sex
between a man and woman, without promise of marriage. They can be said to be in a

470
Section 17, PWDVA
471
See Supra note 468 at p.175
472
Vandana vs. Mrs. Jasyanti Krishnamachari & Other (2007) 6 MLJ 205 (Mad)
473
Section 18, PWDVA

177
‘Domestic relationship’.“A man must not be allowed to take the advantage of his own
wrongs and defeat the rights of a woman in good faith, not knowing the existence of the
first marriage. The second wife must be afforded protection from violence within the
home.474

The Constitutional validity of this law has been challenged in courts of law on the
ground that the law is biased, as it gives special right to women to file the case.
However, the Court said “Giving certain preferential treatment to the wife and treating
them as a special category cannot be termed as violation of either Article 14 or Article 16
of the Constitution of India. Though Article 15 of the Constitution of India Prohibits
discrimination on grounds of religion, race, caste, sex or place of birth, however, Article
15(3) states “nothing in this Article shall prevent the State from making any special
provision for women and children”. Thus, the Constitution itself provides special
provision for women and children. It has been widely resorted to and the Courts have
upheld the validity of the special measures in legislation and executive orders favouring
women. Thus, when the Constitution itself provides for making special provision for
women and children, the contention on the side of the petitioners that there could be no
special treatment for women is totally untenable”.475

Indian society prefers to wrap the matter of domestic violence in secret with a
deep sense of humiliation. Indian women do not like to make it public because of shame
and family prestige. Unfortunately, this attitude vitiates the whole purpose of the
legislation. Though, Research Report repeatedly proved that domestic violence is one of
the few issues, which crosses all the boundaries. But, the law combating domestic
violence is not implemented properly due to the hesitant approach of the women to move
the court. Judicial records show that the conviction rates in cases of domestic violence
are very low. Attitudes of the society with regard to domestic violence should be
changed completely and for that purpose community-based initiatives should be
developed. We have to make a structure within which compromise with the perpetrators
of domestic violence would be possible out of formal courts as our aim is not to punish
the perpetrator but to get justice for the sufferer.476

474
M. Palani vs. Meenakshi,Judgment of the High Court of Chennai on 27 February 2008.
475
Dennison Paulraj & Others vs. Union of India, (2008) 2 MLJ 389:
476
See Supra note 467 at p.175

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 PART-VI
Development of Women Rights under Family Courts Act

The establishment of the Family Courts Act, 1984 was an important legal step
towards the development of women’s rights. The object of the Act is to facilitate
resolution of disputes concerning the family matters satisfactorily. The forum is working
sincerely with an approach to ensure the welfare and dignity of women. Patriarchal
society, gender biased laws and cruel social practices have made the life of Indian
women miserable for centuries.

A significant development has been the recent setting up of the Family Court in
many states. It was a necessary step to be taken. The main purpose behind setting up of
these Courts is to deal with the family matters like marriage, divorce, alimony, child
custody etc exclusively and to give a speedy remedy.

The Family Courts are free to develop their own rules of procedure, and once a
Family Court does so, the rules so framed over ride the rules of procedure contemplated
under the Code of Civil Procedure, it has to be gone through the process of amendment
in order to fulfill the purpose behind setting up of the Family Courts.

Special emphasis is given on settling the disputes through mediation and

conciliation. Thus the dispute is solved by a mutual agreement between the parties. The
aim of the courts is to create such an atmosphere where family disputes can be settled
smoothly. The formal legal system and the regular process of adjudication cause
unnecessary delay of the matter leading to personal and financial losses of the aggrieved.
The presence of counselors and psychological experts in the family Court for help and
guidance in the disputing matters are also praise worthy because the role of the
counselors is not only limited to counseling but extends to reconciliation and mutual
settlement of the dispute. The Act says that a party is entitled to be represented by a
lawyer after getting the express permission of the Court. The most unique feature of the
Family Court is that the disputing matter is first referred for conciliation and when the
conciliation proceedings fail to solve the matter, it is sent for trial by the Court. After the
final order, the aggrieved party has an option of filing an appeal before the High Court.

179
 However, there are some weaknesses of the Act. Domestic Violence Act, 2005
now extends to punishing women for acts of violence but, the Family Courts Act even
doesn’t openly empower Courts to grant injunctions to prevent domestic violence. The
Family Courts Act has to be read in accordance with the provisions of other laws. As the
Family Court has limited jurisdiction regarding the matter of contempt, people do not
treat the court seriously. The Family Courts Act lays down that the majority of judges
should be women. This provision has not been complied with properly. National
Commission of Women reported that there were only 18 women judges in the Family
Courts in India out of 84 judges in all the 84 courts that existed at that time477Different
High Courts have laid down different rules of the procedure, thus there is a lack of
uniformity. Family courts also need to line up with women’s organizations and NGOs
dealing with the welfare of families, women and children.

However, the establishment of family courts is no doubt a brilliant movement

towards ensuring the speedy justice and disposing off the excess cases. For the proper
workings of these courts, certain laws are to be examined and implemented successfully.
These small steps will surely ensure the success of the Family Courts to a greater
degree.478

PART-VII
Protection of Women Under The Human Rights Act

The Act is made to provide for the constitution of a National Human Rights
Commission, State Human Rights Commissions in States and Human Rights Courts for
better protection of human rights and for matters connected therewith or incidental
thereto. Under the Act, "human rights" means the rights relating to life, liberty, equality
and dignity of the individual guaranteed by the Constitution or embodied in the
International Covenants and enforceable by courts in India.

I. National Human Rights Commission - The Central Government shall

constitute a body to be known as the National Human Rights Commission to exercise the
477
workshop organized in March 2002 by National Commission of Women
478
http://www.blogcatalog.com/blogs/voice-of-women-india, Last visited on June 27th 2012

180
powers conferred upon, and to perform the functions assigned to. The Commission shall
perform all or any of the following functions like (a) inquire on a petition presented to it
by a victim or any person on his behalf or by its own choice into complaint of violation
of human rights or abetment thereof or negligence in the prevention of such violation, by
a public servant, (b) intervene in any proceeding involving any allegation of violation of
human rights pending before a court with the approval of such court; (c) visit, under
intimation to the State Government, any jail or any other institution under the control of
the State Government, where Demons are detained or lodged for purposes of treatment,
reformation or protection to study the living conditions of the inmates and make
recommendations thereon;(d) review the safeguards provided by or under the
Constitution or any law for the time being in force for the protection of human rights and
recommend measures for their effective implementation; (e) review the factors, including
acts of terrorism, that inhibit the enjoyment of human rights and recommend appropriate
remedial measures; (f) study treaties and other international instruments on human rights
and make recommendations for their effective implementation; (g) undertake and
promote research in the field of human rights;(h) spread human rights literacy among
various sections, of society and promote awareness of the safeguards available for the
protection of these rights through publications, the media, seminars and other available
means; (i) encourage the efforts of non-governmental organizations and institutions
working in the field of human rights;(j) such other functions as it may consider necessary
for the promotion of human rights.

The Commission shall, while inquiring into complaints under this Act, have all
the powers of a civil court trying a suit under the Code of Civil Procedure, 1908 (5 of
1908). And when any offence as is described in section 175, section 178, section 179,
section 180 or section 228 of the Indian Penal Code (45 of 1860) is committed in the
view or presence of the Commission, the Commission may, after recording the facts
constituting the offence and the statement of the accused as provided for in the Code of
Criminal Procedure, 1973 (2 of 1974), forward the case to a Magistrate having
jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall
proceed to hear the complaint against the accused as if the case has been forwarded to
him under section 346 of the Code of Criminal Procedure, 1973. Every proceeding
before the Commission shall be deemed to be a judicial proceeding within the meaning

181
of section, 193 and 228, and for the purposes of section 196, of the Indian Penal Code
(45 of 1860).

The Commission may, for the purpose of conducting any investigation pertaining
to the inquiry, utilize the services of any officer or investigation agency of the Central
Government or any State Government with the concurrence of the Central Government
or the State Government, as the case may be. The Commission while inquiring into the
complaints of violations of human rights may call for information or report from the
Central Government or any State Government or any other authority or organization
subordinate thereto within such time as may be specified by it, but, if the information or
report is not received within the time stipulated by the Commission, it may proceed to
inquire into the complaint on its own. Where the inquiry discloses the commission of
violation of human rights or negligence in the prevention of violation of human rights, it
may recommend to the concerned Government or authority the initiation of proceedings
for prosecution or such other action as the Commission may deem fit against the
concerned authority or person or persons; or approach the Supreme Court or the High
Court concerned for such directions, orders or writs as that Court may deem necessary;
or recommend to the concerned Government or authority for the grant of such immediate
interim relief to the victim or the members of his family as the Commission may
consider necessary. The Commission shall send a copy of its inquiry report together with
its recommendations to the concerned Government or authority and the concerned
Government or authority shall, within a period of one month, or such further time as the
Commission may allow, forward its comments on the report, including the action taken
or proposed to be taken thereon, to the Commission; the Commission shall publish its
inquiry report together with the comments of the concerned Government or authority, if
any, and the action taken or proposed to be taken by the concerned Government or
authority on the recommendations of the Commission.

2. State Human Rights Commission - A State Government may constitute a

body to be known as the State Human Rights Commission to exercise the powers
conferred upon, and to perform the functions assigned to. A State Commission may
inquire into violation of human rights only in respect of matters relatable to any of the
entries enumerated in List II and List III in the Seventh Schedule to the Constitution.

182
However, it can’t inquire into the matter if it is matter already inquired by any
Commission constituted under any law for the time being in force.

The State Commission shall submit an annual report to the State Government and
may at any time submit special reports on any matter which, in its opinion, is of such
urgency or importance that it should not be deferred till submission of the annual report.
The State Government shall cause the annual and special reports of the State
Commission to be laid before each house of State legislature, along with a memorandum
of action taken or proposed to be taken on the recommendations of the State Commission
and the reasons for non-acceptance of the recommendations if any.

3. Human Rights Courts - For the purpose of providing speedy trial of offences
arising out of violation of human rights, the State Government may, with the concurrence
of the Chief Justice of the High Court, by notification, specify for each district a Court of
Session to be a Human Rights Court to try the said offences. For every Human Rights
Court, the State Government shall, by notification, specifies a Public Prosecutor or
appoint an advocate who has been in practice as an advocate for not less, than seven
years, as a Special Public Prosecutor for the purpose of conducting cases.

The Central Government shall, after due appropriation made by Parliament by

law in this behalf, pay to the Commission by way of grants such sums of money as the
Central Government may think fit. The State Government shall, after due appropriation
made by Legislature by law in this behalf, pay to the State Commission by way of grants
such sums of money as the State Government may think fit for being utilised for the
purposes of this Act.

The Commission shall not inquire into any matter which is pending before any
State Commission or any other Commission constituted under any law or if one year has
expired from the date of violation of human rights is alleged to have been committed.479

Notwithstanding anything contained in any other law for the time being in force,
where the Government considers it necessary so to do, it may constitute one or more

479
Section 36, HRA, 1993

183
special investigation teams, consisting of such police officers as it thinks necessary for
purposes of investigation and prosecution of offences arising out of violations of human
rights.480

No suit or other legal proceeding shall lie against the Central Government, State
Government, Commission, the State Commission or any Member thereof or any person
acting under the direction either of the Central Government, State Government,
Commission or the State Commission in respect of anything which is in good faith done
or intended to be done in pursuance of this Act or of any rules or any order made there
under or in respect of the publication by or under the authority of the Central
Government, State Government, Commission or the State Commission of any report,
paper or proceedings.481 The Central and state Governments may, by notification, make
rules to carry out the provisions of this Act.482

However these human rights instruments suffers from some drawbacks like the
central government has repeatedly dismissed the commission’s proposals. But, when the
Govt. has done such act, the commission was also responsible for not taking any strict
measures. Due to legal formalism and administrative inertia proper steps have not been
taken by the commission. A large number of posts of commissions are still vacant,
which the commission itself is empowered to fill. A victim’s perspective of judging its
effectiveness is missing in the report of the commission. The commission has failed to
open regional offices for adequate regional representation of complaints.

Despite its weaknesses, NHRC has great contribution about making the women
conscious about their economic, social and cultural rights. It has created constant
pressure on the Govt. in recent years for the fulfillment of women rights. Now- a days,
human rights Courts and existing human rights institutions are self-sufficient to deal the
human rights issue. Actually, the establishment of these instruments at the national level
creates an impression that the government is trying to implement the international human

480
Section 37,HRA, 1993
481
Section 38, HRA, 1993
482
Section 40 and 41,HRA, 1993

184
rights norms. These institutions are the only means, which can ensure justice at
reasonable price for the poor and helpless.483

PART-VIII
National Commission of Women for the Protection of
Women’s Right

The National Commission for Women has taken the task of “Preparing the
Women for Tomorrow”. It has organized many awareness programmes for the
development of women. Its workings are (1) Regional meets with State Commission for
Women and NGOs. (2) Seminar on "Empowering Women for Sustained Development
Forging Partnership Urban Local Bodies and Corporates". (3) Workshop on gender
justice - Forging Partnership with Law Enforcing Agencies. (4) A study on systematic
change in custody with mentally ill people in West Bengal. (5) District wise Socio
Economic Gender Disaggregated Data Analysis and district mapping Maharashtra. (6)
Campaign against sexual harassment at work place in West Bengal. (7) Nationwide
workshops on Amendment to Dowry Prohibition Act 1961 and Immoral Traffic
(prevention) Act 1956. (8) Follow up action on India First Report on implementation of
CEDAW. (9) Voice of the Voiceless-status of Muslim Women in India. (10) Rape: A
legal study.484

The National Commission for Women was established as a statutory body in

January 1992 under the National Commission for Women Act, 1990 (Act No. 20 of
1990) of Govt. of India. Its main tusk is to examine the existing safeguards for women;
recommend corrective legislative measures, look into complaints and take suo motu
notice of matters relating to deprivation of women's rights, speedy disposal of grievances
and advise the Government on all policy matters relating to women. The commission is
empowered to investigate and examine all matters relating to the violation of women’s
right. The commission can also report to the Central Government the working of the

483
National Human Rights Commission of India: A Human Rights Evaluation; Source-
www.rwi.lu.se/pdf/seminar/manoj05.pdf, Last visited on 28th June 2012
484
Department of women and child development ,Govt. of NCT, Delhi ; Source-
http://ncw.nic.in/.../Search%20for%20a%20vision%20statement%20on%20Women%20Empo.., Last
visited on 29th June, 2012.

185
safeguards for women; or make recommendations for the effective implementation of the
safeguards for improving the conditions of women and recommend amendments thereto
so as to suggest remedial legislative measures to meet any lacunae, inadequacies or
shortcomings in the legislations relating to women.485

The Central Government shall cause all the reports referred to in clause (b) of
sub-section (1) to be laid before each House of Parliament along with a memorandum
explaining the action taken or proposed to be taken on the recommendations relating to
the Union and the reasons for the non-acceptance.486

Where any report is related to any matter of State Government, the Commission
shall forward a copy of such report to the State Government with a memorandum
explaining the action taken or proposed to be taken on the recommendations relating to
the State and the reasons for the non-acceptance. While investigating any matter, the
Commission shall [referred to in clause (a) or sub-clause(I) of clause (f) of sub-section
(1),] have all the powers of a civil court trying a suit in respect of the following matters
like summoning and enforcing the attendance of any person from any part of India and
examining him on oath; requiring the discovery and production of any document;
receiving evidence on affidavits; requisitioning any public record or copy thereof from
any court or office; issuing commissions for the examination of witnesses and
documents; and any other matter which may be prescribed. 487

Thus the National Commission for Women is doing great work by preparing the
women for tomorrow in every respect. It helps women to manage the situation
according to the needs in the present century. It has solved many problems related to
women with the help of NGO or counseling centre. Women are very much reluctant to
to discuss their problem with the Women Commission due to the congenital
atmosphere. Beside these, it reports and to the Govt. every problematic issue related to
the women and also recommends suggestion for that.

485
ibid
486
ibid
487
ibid

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 PART- IX
Dowry Deaths in West Bengal – A Special Reference

West Bengal is regarded as the cultural centre of the whole India. There is a
general collective awareness among the people of west Bengal and the Bengali has
always had a tradition of unorthodoxy conjoined by a higher degree of political
mobilization than most other regions of the country. But, it has lost its old Nineteenth
Century glory, which is renowned as Bengal Renaissance. Social reformers and
freedom fighter from Bengal led the country in the Indian freedom movement. Now the
picture is totally opposite. In women related crime Bengal has now acquired 1st
position.

According to a report issued by National Crime Records Bureau (NCRB), West

Bengal is the top state among all that registered the maximum number of crimes against
women last year, the Rajya Sabha was informed."West Bengal recorded 29,133 cases
of crime against women, the highest number of cases registered among 28 states in
2011.488 According to the State Crime Record Bureau (SCRB), in 2010, 27,390 cases of
crime against women were registered in several police stations in Bengal.489The
number of Dowry death in West Bengal is 507 in 2010.490

1. Dowry Regime In West Bengal - All employees, including officers of the

West Bengal Government, have to submit a written declaration to the authorities of
their respective departments that they had not accepted dowry " before, after or at the
time of marriage''. Penal action will be taken against those whose testimonies were
found to be untrue. "This unprecedented move is part of the State Government's
programme to give its anti-dowry campaign the much-needed edge. Those found guilty
of having accepted dowry could suffer imprisonment for it is considered a criminal
offence under Section 173 of the Indian Penal Code. Anti-dowry legislation has been in
force in the State since 1961 but this most recent development comes in the wake of a
notification issued by the State Government following an amendment to the West

488
News Track India, August 2012
489
www.Indianexpress.com/news/women, Last visited on 1st July, 2012
490
NCRB Report, source-www.Indiatimes.com, Last visited on 1st July, 2012

187
Bengal Dowry Prohibition Act, 1989. The declaration to be submitted to the
departmental heads will have to be certified by the spouse, father and father-in-law of
the individual concerned. After screening the undertakings, the authorities will send
them to the recently-appointed Chief Dowry Prohibition Officer of the Social Welfare
Department for further action if deemed necessary. The post of Dowry Prohibition
Officer has also been earmarked for each district of the State. The officer will be
entrusted the job of inquiring into any charge against a State employee of having
accepted dowry at the time of his or her wedding in the case of doubt arising over the
veracity of the declaration submitted. The officer will forward the findings of the
inquiry to the department headquarters in Kolkata, the official added. He will also be
empowered to file a first information report with the local police on any case where the
acceptance of dowry has been ascertained. Suspension notices, which could be
followed by a charge sheet, will be served on the guilty employee.491

2. State Amendment of Dowry Prohibition Act - In its application to the

State of West Bengal, in S. 3, for the words “which may extend to six months, or with
fine which may extend to five thousand rupees”, substitute “which shall not be less than
three months, but may extend to three years or with fine which shall not be less than
two thousand rupees, but may extend to ten thousand rupees”492.

In its application to the State of West Bengal, after Sec. 4,insert the following
section, namely:-“4-A. Penalty for depriving any party of the rights and privileges of
marriage.-(1) If after the marriage, any party to the marriage with or without assistance
of his parents or guardians deprives the other party of the rights and privileges of
marriage, or tortures or refuses to maintain the said other party for non-payment of
dowry before, during or after marriage, he shall be punishable with imprisonment
which shall not be less than three months, but may extend to one year or with fine
which shall not be less than two thousand rupees, but may extend to five thousand
rupees, or with both. (2) The provisions of this section shall be in addition to, and not in
derogation of, any provisions on the subject contained in any other law for the time
being in force.”493

491
The Hindu, Kolkata, October. 30, 2003
492
-W.B. Act 35 of 1975, S. 2 (w. e. f. 23-9-1975).
493
W.B. Act 35 of 1975, S. 5 (w. e. f. 23-9-1975).

188
3. West Bengal Service Rules - West Bengal Service Rules, Part -I contain the
rules relating to the conditions of service of officers under the rule making power of the
Government. All the State has been empowered to make rules to regulate recruitment
and conditions of service for its employees. The WBS (Duties, Rights and Obligations
of the Govt. Employees) Rules, 1980 had been framed in exercise of the said power and
came into effect from 1st June, 1980 in replacement of the West Bengal Government
Servants' Conduct Rules 1959. These rules apply to all employees of the Govt. of West
Bengal excepting the members of the All India Services and Members of the Police and
Jail staff falling under the purview of the Jail Code.

A Govt. employee is bound to observe the rules of conduct and discipline in the
discharge of his duties and should not do anything, which is unbecoming of him. Govt.
employees hold a position of trust and responsibility. Social relation and dealings of the
employees should ensure that there is no ground or occasion to suggest that some
individuals have more access or greater influence with them than others. Not only in
official life but also in his private life, he should be above reproach. It should be noted
carefully that any violation or infringement of these rules shall be deemed to be a good
and sufficient reason within the meaning of Rule 8 of WBS (Classification, Control and
Appeal) Rules, 1971 for imposing penalties.

No Govt. employee who has a wife/husband living shall contract another

marriage without previously obtaining the dissolution of the first marriage
notwithstanding such a second marriage being permissible under any personal law of
the community concerned. Under the Hindu Marriage Act (Sec. 17), the Indian
Christian Marriage Act {Sec. 60), the Special Marriage Act (Sec, 44), marrying a
second time while the earlier spouse is living is void and is subjected to the penalties
provided in Sec. 494 and Sec. 495 of I.P.C. Though bigamy is not prohibited in
Mohammedan Law, it will be misconduct under these Conduct Rules. These rules do
not contravene the provisions of the Constitution even though such marriage is
permissible under personal law. Such a condition may be considered reasonable which
the employer is competent to impose.

189
 Gifts under social or religious customs do not come within the purview of this
rule. Acceptance of dowry has however been prohibited with punishable offence under
the Dowry Prohibition Act. It has been held that only those articles are dowry which are
given or agreed to be given as regard or reason or motive for solemnization of marriage.
Gift is distinguishable from illegal gratification.

(1) If he is not arrested, he shall be placed under suspension immediately on submission

of a Police report under sub-section (2) of section 173 of the Cr. P.C., 1973 to the
Magistrate if the report prima facie indicates that the offence has been committed by the
Govt. employee.
(2) A Govt. employee against whom a proceeding has commenced on a criminal charge
but, who is not in custody (i.e. released on bail) in a criminal case may be placed under
suspension. If the criminal charge is related to the official position or involves any moral
turpitude suspension shall be ordered unless there are any exceptional circumstances.
(3) A Govt. employee detained in custody for more than 48 hours under any law
providing for preventive detention or as a result of proceedings either on a criminal
charge or otherwise shall be deemed to have been suspended from the date of such
imprisonment.
(4) Where a penalty of dismissal, removal or compulsory retirement is imposed on a
Govt. employee under suspension or a disciplinary proceeding pending against him is set
aside in appeal or review and the case remitted for further enquiry or action or any
directions, the suspension order will remain in force.
(5) Where the aforesaid penalty or proceedings are set aside by a Court of law and the
disciplinary authority decides to hold a further enquiry the Govt. Employee shall be
deemed to have been placed under suspension from the date he was originally placed
under suspension.

A Govt. employee on suspension is entitled to subsistence allowance and to pay

and allowance on reinstatement under Rule 71 and 72 of W.B.S.R. Suspension on
account of pendency of Criminal trial does not stand automatically revoked as soon as
the employee is released from custody or acquitted of criminal charge. If an employee is

190
acquitted and no departmental proceeding is contemplated, he is entitled to
reinstatement. Suspension without cogent reasons is mollified.494

However, the following penalty may be imposed: (i) Censure (ii) Withholding
of increments or promotion. (iii) Recovery from pay of the whole or part of any
pecuniary loss caused to Govt. by negligence or breach of orders. (iv) Reduction to a
lower stage in the time scale of pay for a specified period with direction as to how future
increments should be earned. (v) Reduction to a lower time scale of pay, grade, post or
service with or without further directions as to restoration to the original grade and
seniority and pay on such restoration. (vi) Compulsory retirement.(vii) Removal from
service, which shall not be a disqualification for future employment under Government.(
viii) Dismissal from service, which shall ordinarily be a disqualification for future
employment under Government. Penalties, imposed shall invariably be recorded in the
confidential character Roll/ Service Book. Failure on the part of a Govt. employee to
intimate to his superior officers the fact of his arrests shall be treated as suppression of
material information and will render him liable to disciplinary action, apart from the
action that may be called for on the outcome of the Police Case against him. It may be
mentioned that in disciplinary proceedings the punishment must commensurate with the
gravity of the offence committed, otherwise it would be violative of Article 14 of the
Constitution.495

4. Police rules - Supervision by officers of and above the rank of circle Inspector of
Investigations of heinous cases has been found to be superficial and perfunctory. The
Inspector-General of Police lays down the following broad lines in which the supervision
of cases should be made and hopes that the work of the officers in this respect will be
more thorough and effective in future. 2. Supervision of a case means proceeding to the
spot as soon as possible (subject to Regulation 55(b) Police Regulations, Bengal,
Volume I), examining, witnesses, laying down and arranging to have followed up lines
of enquiry, scrutinizing the evidence, suggesting points requiring the elucidation and
lastly, seeing that the case is properly prosecuted in a court. Supervision extends from
the time a supervising officer goes to the spot until the case is finally disposed of. The

494
Union of India Vs. J.N. De, (1990), Cal.L.J84
495
West Bengal Service Rules -Penalties (Rule 8)

191
general principles of supervision laid down in Regulations 54- 56, Police Regulations,
Bengal, Volume 1, should be carefully studied. 3. In the case of Circles Inspectors a
marked tendency to show a large number if cases super and thus to swell the returns has
been noticed. The object aimed at is to obtain from Inspectors and Supervision and not
merely that superficial supervision which takes the form of going to spot; giving ordinary
instructions and then paying no further attention to the case. Supervision to be of any
use, must not only he real and continuous until satisfactory result has been obtained or
satisfactory conclusion arrived at, but it must also be applied to those cases which require
the assistance and control of an experienced officer and not to unimportant cases now
being included. In future, Circle Inspectors, while bearing in mind always their
responsibility for the prevention a detection of crime in their circles as defined in
Chapter - V of Police Regulations, Bengal, Volume I, will direct their energies in the
matter of supervision to the more serious and important crime or outbreaks, occurring
within their charges act in this purpose the class of cases which a Superintendent of
Police is required to supervise (vide Regulation 53, Police Regulation, Bengal, Volume
1) may be taken as a general guide. The same remarks apply to testing of investigation, is
to be discontinued unless there reason to believed that such investigation has not been
properly conducted. Henceforth testing a investigation shall be held to mean ascertaining
by personal enquiry during there is nothing wrong. In their monthly summary of work
the Circle Inspectors shall note the number of days spent in supervising and the result of
such case, i.e., whether convicted, returned in final form or pending investigation or trial.
4. Now that the number of superior officer has been augmented and almost ever
subdivision of importance has a Sub Divisional Police Officer, the Inspector-General
desires that every important case should be supervised by a superior officer and the
instructions issued above regarding supervision apply also to them mutatis mutandis. 5
Deputy Inspectors-General of Police are requested to pay particular attention to this
subject when inspecting districts, and to report for the Inspector -General's information in
a separate paragraph, whether these instructions are be in attended to.

Wearing apparels of victims of homicide, assault, rape, rioting, etc., of great

evidentiary value may bear materials which are generally lost unless these are taken off
from the victims' bodies and carefully reserved for experts' examination. It is not,
however, possible to preserver such wearing apparels in such cases because of practical
difficulties. In important cases, such as homicide, rap grievous assaults, accidents and

192
suspicious cases of unnatural death wearing apparels of victims should always be taken
off, preserved and sent to the laboratory when considered necessary, for experts'
examination. The following instructions are issued in this connection or the guidance of
the Investigating Officers: (1) In cases of murder, the wearing apparel of the victim may
provide valuable corroboration of the result of autopsy examination from dust, soil or
other particles, traces of powder, tear or cut marks or perforation. In cases of rape
followed by murder, traces of powder, tear or cut marks or perforation. In cases of rape
followed by murder, traces of fiber, hair, semen, stains, etc., are likely to be found in the
garments of the victim. The garments should be taken all and carefully preserved in such
cases before sending the dead bodies to the morgue. (2) In all cases of rape garments
should be seized under proper seizure list as soon as the victim is contacted before
sending her for medical examination. The victims should be persuaded to deposit their
garments for preservation of important evidence where the garments are likely to
contain. (3) In cases of accidents; specially run over cases, the garments of the victims
are likely to contain tyre marks, grease, dust and paint from the vehicle and should be
seized and preserved carefully. (4) As regards cases of assaults and rioting, because of
very large number of such incidents, the wearing apparel of the victims should be
preserved only in cases of special significance or importance. At present in all eases of
homicide or suspected homicide, the corpse is almost always sent to the autopsy surgeon
in the same garments in which a person dies with a request to preserve the garments. But
in the process of dispatch and Post Mortem examination the garments lose much of the
clues and may acquire foreign bodies and get soaked with blood. It is, therefore, essential
to take off the garments before the dead bodies are sent for autopsy. The wearing apparel
seized in the above cases should first be dried and then carefully preserved preferably in
cellophane packing and sent to the laboratory. It may be remembered that wet stains and
stains of semen and blood decompose very quickly and do not lend themselves easily to
examination with positive results. In order to enable Investigation Officers to seize
garments from dead bodies, they will first request relatives if any, to lend a second
garments to wrap the body up or otherwise a piece of cheap cloth of two meters in length
and one and a half meters in width may he used to wrap round the body for sending it for
the post mortem examination. The expenditure may be met from the investigation
charges. Prior arrangement of taking such a piece of cloth by the Investigating Officers

193
may not be normally necessary except in cases where the corpses are found without a
claimant.496

Women grievances cell existing in the district is renamed as protection of women

and children grievances cell (POWC cell). In addition to the crime against women, this
cell will work as a special juvenile police unit for the district. This cell is also act as a
Nodal Agency of crime against women and children in district and will coordinate with
west Bengal women commission, human right commission and other agency through
directorate of police under the direct supervision of district superintendent of police/
Addl. Superintendent of Police as designated by the district S. P. Officers posted in the
POWC cell are trained in the constitutional and legal provisions on the subject of crime
against women and children. They should also have the knowledge of functioning of the
different courts. They should also keep close relationship with all the agencies working
in the district.497

Awareness programme - It is also responsible for organizing the awareness programme

in the vulnerable areas relating to women and children in the educational institutions of
the district with the help of local police stations and NGO regarding violence against
women and children.

Training Programme - It is also empowered to organize training program me on gender

sensitization and investigation of offences against women in which all legal provisions of
IPC. Such programmes will be held frequently at the district head quarters with the
coordination of the district S.P. and Addl. S.P.
Drive programme - POWC cell is also responsible to arrange for special drive
programme against sexual harassment, eve-teasing, sexual exploitation of women and
children or for any other crime against women.

100 Dial Help Line -‘100 dial’ help line is another resort to the hapless women. If any
women dials 100 for counseling over marital/ domestic or over any other issue, she shall

496
WEST BENGAL POLICE ORDER NO.4 /1969
497
POLICE ORDER 10/05- [G.O. NO-1309/PL/PD/4B- 61/92 dtd - 2nd March,1995 of Home (Police)
Department West Bengal]

194
be heard by the officers concerned, so that her problem can be attended without any
delay498

Power of Investigation - There is also a provision for Special investigating pool in the
district. D.S.P. may authorize any officer posted in the POWC cell to investigate any
crime within the jurisdiction of the district. Other procedure of recording crime is the
same.499

Mahila help desk – Mahila help desk are set-up at various railway stations and airports
in west Bengal. It help the women by providing all the important phone no and addresses
of all NGO’s all social welfare departmental officers, probation officers, Dowry
protection officer, child welfare committee, Juvenile Justice Board, Legal aid Service
and other important functionaries like doctor, teacher, lawyer, principals of schools and
college, respected citizens etc. The functioning of Mahila help desk will be supervised by
the SRP’s in charge of a zone and will be monitored by the Asst. Inspector General of
Police (special) West Bengal and the files will be dealt at ADM/C section, Police
Directorate.

5. Protection of women at the District Level - The Dept. of Women and Child
Development and Social welfare, the District Level Committee for protection of women
right, in each district was re- constituted consisting of the following persons- D.M., a
Judicial officer CMOH, S.P. of the District, Principle of the local women’s college, Head
mistress of the Girls High School, Public Prosecutor, representatives of various Mahila
Samities and District Social Welfare Officer. As per the resolution the committee may
meet at least once in two months Their function is to assess the state of crime in the
district, progress of investigation and measures taken by the appropriate authorities for
prevention of crime against women in the light of the particular needs of the district I
will act as a public defenders of women rights. This will be a single, easily accessible,
highly visible agency which women whose rights have been abused can approach for
redress. The committee will enjoy powers to provide legal aid and also to monitor
registration, incidence and investigation and disposal of cases relating to atrocities
against women. The quarterly meeting will be held by the Dept of social welfare to
498
Police order no 16/2004
499
Police order no16/ 1976

195
assess functioning of the committee periodically. The District SP may ensure the
implementations of the decision taken in the District Level Committee for Protection of
Women Rights.500

6. Inclusion of Dowry problem within the school syllabus - West Bengal

Govt. has included the problem of Dowry and its effect within the school syllabus. It is
no doubt a good effort on the part of the Govt. To eradicate this problem, teaching the
menace of dowry in the school, colleges will be very helpful for building the anti-dowry
opinion of the people from the childhood. This step of the West Bengal Govt. should be
followed by the central Govt. to make law in this respect.

The West Bengal Govt. is playing a significant role to prevent the crime of dowry
death by dealing with such cases in a strict manner. The Govt. has taken the tusk of
totally banning the giving and taking dowry. Police officers are properly trained to deal
with the women related cases. The dowry prohibition officer is also entrusted to deal
with the matter very sincerely. Various welfare measures are taken for the protection of
women. Voluntary Organization are also working with utmost dedication and helping the
Govt. But, despite all these efforts, crime rate against women is increasing day by day.
Actually, women are very reluctant to approach the Court; so long there is a chance to
continue the matrimonial tie. Most of the criminals in dowry death cases are released on
the ground of benefit of doubt due to lack of evidences. However, more awareness
programmes for educating the women to realize the gravity of the problem should be
organized. And the most important is that Govt. should make proper arrangement for the
rehabilitation of these hapless women.

In conclusion, it can be said that since independence, women had been fighting
against the patriarchal order of family and society for the recognition of their basic
human rights, which are important for the development of human personality and the
recognition of women as a human being.501

500
Resolution no 289- SW/3W-21/93 The Dept. of Women and Child Development and Social welfare,
Source- cidwestbengal.gov.in/file/handbook/CHAPTERV.pdf, Last visited on July, 9th 2012.
501
Kalpana Annabiran and Ritu Menon, op. cit. pp22-31. Foundation Course Human Rights, Gender &
EnvironmentUniversity of Delhi; source-
www.du.ac.in/fileadmin/DU/Academics/course_material/hrge_07.pdf, Last visited on July 9th ,2012

196
 Indeed, the true empowerment of women is possible only by the accomplishment
of the basic human rights of women to enjoy all opportunities in all spheres of life
equally. The promise of India's Constitution for gender equality is the most praise
worthy. But, its promises would be empty if the laws regulating women's rights are not
reviewed properly and until state provides complete equality to women.

Crime against women is increasing day by day. Women continue to be victims of

violence, exploitation, discrimination and torture. If we are not very much cautious about
the problem and take a grave steps to control the situation, it will become extremely
crucial. India fails to adopt Uniform Civil Code even after 65 years of independence and
is in the domain of personal laws, which lowers down the dignity of women. Though,
due to the cautious eye of the legislature and judiciary there has been continuous
development of personal law by amendment and judicial interpretation, but still personal
law look women with discriminatory eyes. The concept of marriage and divorce has been
changed by several amendment and judicial interpretation. Women from every
community can seek maintenance under Section 125 of the Code of Criminal Procedure.
Regarding property rights the position of Hindu women is better in comparison with
other women. They enjoy equal right in the matter of property right with men. In the
matter of adoption and guardianship, mother has no right; father is the primary decision
maker. Several welfare provisions of the labour legislations fail to provide safeguards to
the workers even in the organized sector. NHRC is creating constant pressure on the
Govt. and act as a reminder of the state obligations towards the fulfillment of rights. The
establishment of family courts is no doubt a brilliant movement towards ensuring the
speedy justice to hapless women.

It is indisputable that law has failed in affording a solution to the problem. Time
has come for an alternative remedy of the crisis, because abuse of women is increasing
day by day. There is a big gap between the theoretical assurance and their proper
implementation. Govt. should adopt new implementation procedure for materialization
of law. Women cover themselves in a veil of silence. They have no faith on patriarchal
Society, family, police, and the administration. If women refuse to speak up, then all
protective measure will go in vain. Only they can take up the important step for fighting

197
their own cause, they have to seek remedy for the consequences of abuse, exploitation
and violence. Increase in the literacy rate will certainly lessen the problem of females. It
will also promote women to affirm their rights. Govt. should also arrange proper
orientation programmes for women to appreciate the value and worth of woman in
family, society as a human person.

198
 THE ROLE OF JUDICIARY
TOWARDS WOMEN PROTECTION

CHAPTER - 4

199
 Chapter - 4
THE ROLE OF JUDICIARY TOWARDS WOMEN
PROTECTION

Indian judiciary is very much insightful to the needs of justice. It is one of the
judiciaries in the world which enjoys a high status of being fairness - responsive.
However, general people feel that it should be more impartial, more susceptible
regarding gender-justice.

There has been an enormous change in the concept of women's right. A dialogue
from Ibsen’s “A Doll's House” can make it clear.502 Helmer tells Nora—"First and
foremost, you are a wife and mother." Nora replied—"That I don't believe any more. I
believe that first and foremost, I am an individual, just as much as you are." The above
dialogue implies that “A woman of today demands herself to be treated as an individual,
a living human being, entitled to the same dignity and status, as her male
counterparts.”503

The movement for ‘Women empowerment’ expanded universally under the

protective umbrella of United Nation. The Universal Declaration of Human Rights
reaffirms faith in the dignity and worth of human person and guarantees human rights
and fundamental freedoms in the equal rights of men and women. The World Conference
on Human Rights at Vienna in 1993 had declared the human rights of women and the
girl child to be "inalienable, integral and indivisible part of universal human rights" The
Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW), 1979 becomes an important legal instrument for the protection of the equal
rights of women within the structure of the United Nations. It is also called ‘the
International Bill of Rights for Women’.

The Constitution of India has taken the primary responsibility to uplift the status
of women since independence. The constitution itself contains many provisions for the

502
“A Doll's House” written by Henrik Ibsen
503
Justice R.C. Lahoti, “WOMEN'S EMPOWERMENT—ROLE OF JUDICIARY AND LEGISLATURE”; Ref-
http//www.ebc-india.com.

200
protection of women. It also permits for the enactment of special laws for women. To
fulfill the constitutional mandate, our legislature has been enacting many special laws to
deal with the women issue specifically like Dowry Prohibition Act in 1961, the Medical
Termination of Pregnancy Act, 1971, the Immoral Traffic (Prevention) Act, 1956, the
Maternity Benefit Act of 1961, Indecent Representation of women (Prohibition) Act,
1986 etc.

Under the personal laws, Specific provisions are contained for grant of
maintenance under section 24 and 25 of the Hindu Marriage Act, 1955 and Section 18 of
the Hindu Adoptions and Maintenance Act, 1956. The same provisions are also available
under the Parsi Marriage and Divorce Act, 1936 and the Indian Divorce Act, 1969.
Provisions have also been made in the Muslim Women (Protection of Rights and
Divorce) Act, 1986 in relation to maintenance of the Muslim Women.

Despite all these enactments, the true fact is that extensive violations of women's
rights are still continuing. The forces of globalization, non cooperation by the patriarchal
society, greed for easy money, inadequacy of law, structural inequalities, ineffective
enforcement machinery and imbalance power make the violation of women’s right easy.

The law cannot solve a problem instantaneously, but unquestionably it can give
justice to the aggrieved, but, how? Legislature can make law, but who will implement the
law? Here, the judiciary has to play its role. The courts can interpret law in such a way so
that it can meet the changing circumstances to give justice to the masses by applying the
principle of equity, justice and good conscience. And to achieve that end, it can go
beyond the mere legality.

The judges have a two separate task to play. Firstly, it is the judiciary who
analyses law for the sake of justice and implements them in proper place for the progress
of society. Secondly, a judge must be compassionate while administering law otherwise
the object of the legislations may be disturbed. In the words of Justice V. R. Krishna
Iyer, “Case-law, creative, imaginative and gender-friendly, has its logic and limitation.
Judges cannot make law but only interpret it and decide specific cases and controversies
within defined bounds although in that process they do make law interstitially. But
legislation is essentially a wider function covering vaster spaces and free to weave

201
fabrics of fundamental mutation. So it is substantive codification, radical in
transformation of the social order, that we need, an avant-garde operation Parliament
must perform. Magnificently as the judiciary has acted, they have not and could not
usurp legislative functions.”

Innovatory judgments of the Indian judiciary clearly reflect the fact that judges
are the precursors of women movement against gender inequalities in society. The
provisions of laws enacted by the legislature obtain their true significance in the hands of
judiciary. While administering justice, it has to understand the Constitutional as well as
the legislative intent, and at the same time adhere to the several aspects of social,
economic and political life of a woman. It has adopted many devices like judicial review,
judicial activism, social action litigation etc. to give justice to the weaker sections of
society. All the weaponry of judiciary has been facilitating to make the constitutional
scheme of protective discrimination in favour of women meaningful. However, a detail
discussion of the attitude of the judiciary in various decisions will reveal the true fact.504

PART-I
Judiciary as a Protector of Constitutional Rights

The Constitution of India provides special treatment to women, guarantees

equality and prohibits discrimination. To fulfill the constitutional mandate, our
government has been enacted many laws relating to women. Recently, we have
witnessed some landmark interpretations and directives related to women’s rights by the
judiciary, but, the same is yet to be realized. At the district and the state level sensitivity
on women’s rights among judicial officers, administration and the police is very low,
which creates a situation, where the implementation of the law becomes difficult.
Landmark Judgments of the Supreme Court and the High Courts ensure wide scale
dissemination of the same through the government and the non government machinery.

504
Dr. Chandrashekhar, Senior Lecturer, Department of Law, Deen Dayal Upadhyay Gorakhpur
University ;“Gender Justice Through Protective Discrimination : A Constitutional Perspective “.source-
www.airwebworld.com

202
1. Right to Education - A.P. High Court in P. Sagar case,505 30% Reservation
for women in selection for admission into MBBS Course, came up for consideration
before the Division Bench of the A.P. High Court. The court held that in view of Article
15(3), no exception could be taken for reservation in favour of women. Patna High Court
in the case of Padmraj Samerendra case,506 also held that reservation for girl students in
Medical Colleges was valid and again the Patna High Court in Amalendra Kumar
case507 case held that reservation of 20% seats for girl students in Medical Colleges was
valid and at the same time the necessity of lady doctors in the state has to be taken in
consideration. Thus it cannot be said to be unfairness on the ground of sex alone. Other
important decisions relating to women’s education are free and compulsory education for
children, Sarva Siksha Abhiyan, 40% of budget on education spent for girls and women,
review of Schools Text books to remove gender bias etc.

2. Political Rights - The question relating to the matter, whether special

provisions can be made in respect of giving political rights to women? The Supreme
Court already held that the general prohibition against discrimination in clause (1) of
Article 15 also extends to political rights and therefore, the umbrella of protective
discrimination can be used to secure political rights to the women.508

In Dattatrays Motiram case,509 Bombay Municipal Borough Act, 1925 providing

for reservation of seats for women in the election to the Municipality was challenged on
the ground that it violates Articles 14, 15 and16 of the constitution. The Bombay High
Court rejected this argument and said that if, that was the object of enacting Article
15(3), then Article 15(3) need not have been enacted at all as a proviso to Article 15(1).
Therefore, as a result of the joint operation of Article 15(1) and 15(3), the State may
discriminate in favour of women against men, but it may not discriminate in favour of
men against women. Thus, the legislation does not offend Article 15(1) by reason of
Article 15(3). The Court also said that even today women are more backward than men
and it is the duty of the State to raise the position of women to that of men. It would be

505
P. Sagar Vs. State of A.P AIR 1968 AP 165
506
Padmraj Samerendra v. State of Bihar, AIR 1979 Patna 266
507
Amalendra Kumar Vs.State of Bihar AIR 1980 Patna
508
Nain such v. State of U.P., 1953 SCR 1184.
509
Dattatrays Motiram v. State of Bombay A.I.R 1953 Bom 311:55 Bom LR 323

203
very difficult for women to be elected if there was no reservation in their favour and
Government may well take the view that participation of women are necessary in local
authorities before they decide any question relating to them. The decision of Assam High
Court, in Beney Bhusan Chakravarty case510 and Ram Chandra Mohton case511 are also
worth mentioning.

3. Right to Equal Employment Opportunity - The decisions of the

judges in favour of women in the field of employment are also very important for
women. Rule 18(4) of the Indian Foreign Service (Recruitment, Seniority and
Promotion) Rules, 1961, was declared discriminatory by the Supreme Court on the
ground of sex as it requires prior permission of the govt. before marriage and they may
be denied to employment on that ground after marriage. Thus, it violates Article 14 of
the constitution.512 Section 30 of the Punjab Excise Act which prohibited the
employment of women in hotels and bars serving liquor was challenged on the grounds
of violation of Articles 14, 16 and 21 of the constitution. Supreme Court held that instead
of prohibiting women employment in the bars altogether the state should focus on
factoring in ways through which unequal consequences of sex differences can be
eliminated. It is the states duty to ensure circumstances of safety which inspire
confidence in women to discharge duties freely in accordance to their professional
requirements.513

The Supreme Court of India has always been rejected adverse discrimination
against women. Though, it is a fact that some disability can be attached with a woman
due to their physical structure, but discrimination against women on that ground is totally
an injustice and violative of right to equality guaranteed under the Constitution of India.

The pioneering case in the history of women's right on this point is Nargesh
Meerza case514 In this case some of the provisions of Air India Employees Service
Regulations and of Indian-Airlines (Flying Crew) Service Regulations were declared as
violative of Article 14 of the Constitution of India. It provided that "Air Hostesses shall

510
Beney Bhusan Chakravarty v. Govind Chandra Sharma case Air1955 Assam 1780.
511
Ram Chandra Mohton v. State of Bihar Air1966 Pat.214
512
C.B. Muthamma v. Union of India, AIR 1979 SC 1868
513
Anuj Garg v.Hotel Association of India (2008) 3SCC 1
514
Air India v. Nargesh Meerza.AIR 1981 SC1829

204
not marry for the first four years of their joining; they will lose their jobs if they become
pregnant. They shall retire at the age of 35 years, unless managing director extends the
term by ten years at his discretion.” Supreme Court declared that termination of service
on the first pregnancy is violative of Article 14 and said, "It seems to us that the
termination of the services of an Air Hostess under such circumstances is not only a
callous and cruel act but an open insult to Indian womanhood - the most sacrosanct and
cherished institution." The court also observed that the extension of the retirement of an
Air Hostess by ten years depended on the "mercy and sweet will" of the Managing
Director also violates the provisions of equality under Article 14, as it delegates
uncontrolled power in the hands of one person.

In C.B. Muthamma case,515 Miss Muthamma, a senior member of Indian Foreign

Service filed a writ petition before the Apex Court contending that she had been denied
promotion on the ground of sex. Rule 8(2) of the Indian Foreign Services Rules, 1961
provided that an unmarried woman member of the service should obtain the permission
from the Government in writing before she marries. And at any time after marriage, she
may be asked to resign from service, if it is felt that her family life affects her official
efficiency.

The Hon’ble JJ. V.R. Krishna Iyer and P.N. Singhal held that "This writ petition
by Ms Muthamma, a senior member of the Indian Foreign Service, bespeaks a story
which makes one wonder whether Articles 14 and 16 belong to myth or reality. The
credibility of the Constitutional mandates shall not be shaken by governmental action or
inaction but it is the effect of the grievance of Ms Muthamma that sex prejudice against
Indian womanhood pervades the service rules even a third of a century after Freedom.
There is some basis for the charge of bias in the rules and this makes the ominous
indifference of the executive to bring about the banishment of discrimination in the
heritage of service rules. If high officials lose hopes of equal justice under the rules, the
legal lot of the little Indian, already priced out of the expensive judicial market, is best
left to guess.”

515
C.B. Muthamma v. Union of India AIR 1979 SC1868

205
 Striking down the rules as violating the principle of quality, it was said "We do
not mean to universalize or dogmatize that men and women are equal in all occupations
and all situations and do not exclude the need to pragmatise where the requirements of
particular employment, the sensitivities of sex or the handicaps of either sex may compel
selectivity. But save where the differentiation is demonstrable the rule of equality must
govern."

In Vijay Lakshmi case,516 the Division Bench of Supreme Court held that Rules
5, 8, 10 of Punjab University Calendar, Volume III, provided for appointment of lady
Principal in Women's college or a lady teacher therein, cannot be considered to be
violative of Articles 14 and 16 of the Constitution, because such categorization is
rational and it has a nexus with the goal to be achieved. The State Government’s power
to make special provisions under Article 15(3) of the Constitution of India is not limited
by Article 16 in any manner. The Court said that “On the concept of equality enshrined
in the Constitution, it can be stated that there could be classification between male and
female for certain posts. Such classification cannot be said to be arbitrary or unjustified,
rules providing appointment of lady principal or teacher would also be justified. The
object sought to be achieved is a precautionary, preventive and protective measure based
on public morals and particularly in view of the young age of the girl students to be
taught.”

In Baghu Ban Saudagar Singh case,517 the Division bench of the Punjab and
Haryana High Court held that the order of the Government of the Punjab determining
women ineligible for work in men's jail except those of clerks, on the basis that prisoner
in jails are tough criminals, the women performing jail duties would be in a more unsafe
position than a male keeper. The court also held that discrimination involved in the case
was not based solely on the ground of "sex", but administrative efficiency and social
facts coupled with sex.

The Judicial service rules, which provided that a married woman could not be
appointed as a District Judge, since it could affect efficiency of Services, came up for
consideration before the Division Bench of the Orissa High Court in Radhacharan

516
Vijay Lakshmi v. Punjab University AIR 2003 SC 3331
517
Baghu Ban Saudagar Singh v. State of Punjab AIR 1972 P & H 11

206
Patnayak case,518 and the Division Bench held that disqualification of a married woman
from being eligible for appointment amounts, in substance, to disqualification on the
ground of sex only. Marriage does not operate as a disqualification for appointment as
District Judge in case of men whereas in the case of a married woman, they are being
excluded from appointment. Such disqualification thus being based on sex was held to be
unconstitutional.

In Aparna Basu Mallick case,519 the Calcutta High Court has held that Bar
Council cannot deny the petitioner to be enrolled as an Advocate. The petitioner did her
LL.B. as non-collegiate student from Calcutta University. The Bar Council had failed to
perform its functions of laying down the conditions of enrolment. Its function is to
recognize the Indian Universities for purposes of the Advocates Act. The Calcutta
University is recognized by the Bar Council. But the Bar Council had refused to enroll
the petitioner on the ground that she had done her LL.B. as a non-collegiate student.
Article 15(3) of the Constitution of India must be treated as applying to both existing and
future laws for making special provisions in favour of women.

4. Right to Equality- The Supreme Court in Triloki Nath Khosa case,520 dealing
with the right to equality held that “But the concept of equality has an inherent limitation
arising from the very nature of the constitutional guarantee. Equality is for equals. That
is to say that those who are similarly circumstanced are entitled to an equal treatment.
Since the constitutional code of equality and equal opportunity is a charter for equals,
equality of opportunity in matters of promotion means an equal promotional opportunity
for persons who fall substantially within the same class.”

In J.P.Singh case521Court held that the principles of equality are practically in the
nature of natural law and denial of equality would be against the article of equality i.e.
Article 14 of the constitution. Again, in Dharwad District PWD Employees Association
case522the Court held that the Act provides for payment of equal remuneration to men
and women workers for the same work or work of a similar nature and for the prevention

518
Radhacharan Patnayak Vs. State of Orissa AIR 1969 Orissa 267
519
Aparna Basu Mallick v. Bar Council of India AIR 1983 Cal. 461
520
J & K vs. Triloki Nath Khosa [(1974) 1 SCC 19: 1974 SCC (L&S) 49)]
521
J.P.Singh v Telco (1999) 2LLJ 43 (Pat)
522
Dharwad District PWD Employees Association v. State of karnataka (1990) 2 SCC 396

207
of discrimination on the ground of sex. The Supreme Court in M/s. Mackinnon
Mackenzie and Co. Ltd. case523held that in deciding whether the work is of same or
similar nature and in ascertaining whether the differences are of any practical
importance, the authority should take a broad view of the matter. This is because the very
concept of similar work implies “differences in detail” These differences should not
defeat the claims of equality on trivial grounds but look at the duties actually performed
and not those theoretically possible.

In Dimple Singla case524 Delhi High Court expressed the anxiety that unless
mind-sets change, elimination of discrimination against women can’t be changed. There
is still a divergence between right guaranteed by the constitution and their application in
the practical life of women. It is true that women are now working in the field, which
have been for long time occupied by the male. But, there are so many instances which
will reveal the lack of faith on the part of men regarding the capabilities and efficiency of
women. There is a long and persistent notion regarding the capacities of women to meet
the challenges of the jobs assigned. Such doubts affect the dignity of working women.

The interpretation of Articles 23 and 24 lays down the fact that the founding
fathers were concerned not only to protect the interest of women but also to ameliorate
the condition of their lot in totality.15 The Supreme Court in the case of Bandhwa Mukti
525
Morcha case observed that the Central Government is bound to ensure observance of
various social welfare and labour laws enacted by the Parliament for the purpose of
seeking to the workmen a life of basic human dignity in compliance with the Directive
Principles of the State Policy. It is the duty of the State to ensure that the health and
strength of workmen (men and women) and the tender age of children are not abused and
that the citizens are not forced by economic necessity to enter vocations unsuited to their
age and strength. The Supreme Court in a number of cases held that right to economic
empowerment of women is a human right. In the case of C. Masilmami Mudaliar case526
the Supreme Court has recognized, highlighted and conferred the right to economic
empowerment of women as fundamental right under Constitution of India.

523
M/s. Mackinnon Mackenzie and Co. Ltd. Vs. Audrey D’Costa and another (1987) 2 SCC 469
524
Dimple Singla v.Union of India (2002) 2 AISLJ 161
525
Bandhwa Mukti Morcha Vs. Union of India AIR 1984SC 802
526
C. Masilmami Mudaliar Vs. Idol of Sri Swamina Thaswami Thirukoil 1996 8 SCC 525

208
 In Female Workers (Muster Roll) and Another case527, temporary female
workers (muster roll) of Municipal Corporation of Delhi denied maternity leave on the
ground that their services were not regularized. The Supreme Court held that the
provisions of the Act would indicate that they are wholly in consonance with the
Directive Principles of State Policy as set out in Article 39 and in other articles,
especially Article 42. A women employee at the time of advanced pregnancy cannot be
compelled to undertake hard labour as it would be detrimental to her healthy and also to
the health of the foetus.

The Supreme Court further held that “To become a mother is the most natural
phenomenon in the life of a woman. Whatever is needed to facilitate the birth of child to
a woman who is in service the employer has to be considerate and sympathetic towards
her and must realize the physical difficulties which a working woman would face in
performing her duties at the workplace while carrying a baby in the womb or while
nursing the child after birth.” The Maternity Benefit Act, 1961 fulfills all these
conditions. In P.B. Vijay Kumar528 case Reservation of posts for women has been upheld
under Art. 15(3).The Hon'ble Supreme Court held that under Article 15(3) any provision
which a State may make to improve women's participation in all activities, under the
supervision and control of the State, can be either in the form of affirmative action or
reservation. In the words of Mrs. Justice S. V. Manohar, “The insertion of clause (3) of
Article 15 in relation to women is recognition of the fact that for centuries, women of
this country have been socially and economically backward. The objective is to
strengthen and improve the status of women. An important limb of this concept of
gender equality is creating job opportunities for women. To say that under Article 15(3),
job opportunities for women cannot be created would be to cut at the very root of the
underlying inspiration behind this article. Making special provision for women in respect
of employment or posts under the State is an integral part of Article 15(3)”. In the case of
Gayathri Devi case,529 preference to lady applicants in furtherance of giving effect to the
provision of self-employment of women to the extent of 30% was upheld by the
Supreme Court.

527
Municipal Corporation of Delhi vs. Female Workers (Muster Roll) and Another (2003) 3 SCC 224).
528
Government of A P v. P.B. Vijay Kumar (1995) (3) SCALE 1638.4 : AIR 1995 SC 1648
529
Gayathri Devi Vs. State of Orissa (2000) 4SCC 221)8.10

209
5. Right to Live with Dignity - In Gautam Kundu case530the apex court
ensured that an application for blood test to disprove paternity of a child in a
maintenance suit was rejected. It was held that a child born of a married woman is
deemed to be legitimate unless the contrary is proved. Such a presumption could be
rebutted by a strong preponderance of evidence and not a mere balance of probabilities.
Again in Surjit Singh531case the high court held “Allowing the medical examination of a
woman for her virginity would certainly violate her right of privacy and personal liberty
enshrined under Article 21 of the constitution. Such an order would amount to a roving
enquiry against a female who are vulnerable even otherwise. In the instant matrimonial
case the question of virginity of the wife is not in issue and the virginity test can not
constitute the sole basis to prove the consumption of marriage. Allowing such a medical
examination of the wife would be holding a roving enquiry which is not permissible.
Thus, the order of lower court dismissing application by husband for getting wife
medically examined in order to prove her virginity is proper.”

6. Right against Exploitation - In Vishal Jeet case532 case, the court held
“Prostitution always remains as a running sore in the body of civilization and destroys all
moral values. The causes and evil effects of prostitution maligning the society are so
notorious and frightful that none can gainsay it. This malignity is daily and hourly
threatening the community at large slowly but steadily making the way onwards leaving
a track marked with broken hopes. Therefore the necessity for appropriate and drastic
action to eradicate this evil has become apparent.”In Gaurav Jain case533 the Court
issued direction for a multipronged approach and mixing the children of prostitutes with
other children instead of making separate provision for them. Supreme Court directed for
the prevention of induction of women in various forms of prostitution. Women should be
viewed more as victims of adverse socio-economic circumstances than offenders in our
society.

7. Uniform Civil Code - The judiciary in India has taken notice of the unequal
position of Indian women in personal laws. It has been articulated its anxiety through a

530
Gautam Kundu v. State of West Bengal (1993) 3 SCC 418
531
Surjit Singh v. Kanwaljit Kaur AIR 2003 P&H 353
532
Vishal Jeet v.Union of India (1990) 3SCC318
533
Gaurav Jain v. Union of India (1997) 8 SCC 114

210
several judgments and repeatedly emphasizes on the necessity of uniform laws in
personal matters of all the citizens. The Supreme Court of India for the first time directed
the Indian Parliament to frame a Uniform Civil Code in 1985 in the case of Shah Bano
Begum534 case regarding the liability of a Muslim husband to maintain his divorced wife
beyond ‘iddat’ period, who is not able to maintain herself, the Supreme Court held that
Section 125 Cr. P.C. which imposes such obligation on all the husbands is secular in
character and is applicable to all religion. Justice Y. V. Chandrachud held:

“It is also a matter of regret that Article 44 of our constitution has remained a dead
matter there is no evidence of any official activity for framing a common civil code for
the country. A belief seems to have gained ground that it is for the Muslim Community
to take a lead in the matter of reforms of their personal law. A common Civil Code will
help the cause of national integration by removing disparate loyalties to laws which have
conflicting ideologies. No community is likely to bell the cat by making gratuitous
concessions on this issue………. Inevitably, the role of the reformer has to be assumed
by the Courts because; it is beyond the endurance of sensitive minds to allow injustice to
be suffered when it is so palpable. But piecemeal attempts of Courts to bridge the gap
between personal laws cannot take the place of a common civil Code; Justice to all is a
far more satisfactory way of dispensing justice than justice from case to case.”

In Ms. Jordan Deigndeh case535, D. Chinnappa Reddy, J. observed that “The

present case is yet another which focuses on the immediate and compulsive need for a
uniform civil code. The totally unsatisfactory state of affairs consequent on the lack of a
uniform civil code is exposed by the facts of the present case...’’. Again in Sarla Mudgal
case,536 the Supreme Court held that “Conversion of a Hindu male to Islam only for the
purpose of contracting bigamous marriages circumvents Section 494 of I.P.C. Such
marriages have been declared as bigamous and void by the court. The Court held “Since
Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause
of the national unity and integration, some other communities would not, though the
constitution enjoins the establishment of a common civil code, for the whole of
India…Those who preferred to remain in India after partition ,fully knew that Indian

534
Mohd. Ahmed Khan v. Shah Bano Begum (1985) 2 SCC 556 : 1985 SCC (cri) 245
535
Ms. Jordan Deigndeh v. S. S. Chopra case AIR 1985 SC 935
536
Sarla Mudgal v. Union of India case (1995) 3 SCC 635

211
leader did not believe in two-nation or three nation theory and that in the Indian Republic
there was to be only one Nation, the Indian nation and no community could claim to
remain a separate entity on the basis of religion. In this view of the matter, no
community can oppose the introduction of Common Civil Code for all citizens in the
territory of India”

The Court highlighted the failure of successive governments since 1950, to

implement the constitutional commitment under Article 44 of the constitution of India. It
recommended that there should not be any necessary connection between personal laws
and religion in a civilized society. Again, in John Vallamattom case,537 the Supreme
Court reminded the government of its Constitutional obligations to implement UCC,
when a Christian priest knocked the doors of the Court challenging the Constitutional
validity of Section 118 of the Indian Succession Act. The bench comprising of Chief
Justice of India V.N. Khare, Justice S.B. Sinha and Justice A.R. Lakshamanan struck
down the Section declaring it to be unconstitutional. Chief Justice Khare stated that "We
would like to State that Article 44 provides that the State shall endeavour to secure for all
citizens a uniform civil code throughout the territory of India It is a matter of great
regrets that Article 44 of the Constitution has not been given effect to. Parliament is still
to step in for framing a common civil code in the country. A common civil code will
help the cause of national integration by removing the contradictions based on
ideologies."

Thus, it is clear that gender justice could be possible only if there is uniform civil
code. Our apex court has on several occasions directed the government to acknowledge
the directive principle enshrined in our Constitution. When the women will be treated
equally irrespective of their religious status at par with men in all matters, the
constitutional objective to ensure equality and justice to all will be fulfilled.

In modern India life of women become miserable by violence, discrimination,

torture. Judiciary has come to rescue them from their age-old struggle and to ensure
justice. The judiciary is the protector of constitutional rights and the custodian of human

537
John Vallamattom v. Union of India AIR 2003 SC 2902

212
rights of persons. Judiciary has always tried to accomplice the Constitutional goal to
acquire democracy, freedom and equality for all.

PART – II
Judiciary and Criminal Law

The Judiciary is a shield to the women for the protection of their rights. It is the
Court, which is constantly striving to stop all types of crime against women by
explaining the provision of law to deal with different situation and by directing the Govt.
to make new law to cover new and exceptional circumstances. There is no doubt that the
Court is playing a significant role to prevent crime against women by considering such
cases in a more practical manner. It is also trying to fill the gaps of procedural lacunae in
the existing laws by its interpretation.

1. Obscenity - The Encyclopedia538 definition of Obscenity states, 'By English law

it is an indictable misdemeanor to show an obscene exhibition or to publish any obscene
matter, whether it be writing or by pictures, effigy or otherwise.' The precise meaning of
"obscene" is, however, decidedly ambiguous. It has been defined as something offensive
to modesty or decency, or expressing or suggesting unchaste or lustful ideas or being
impure, indecent or lewd". However, the concept of obscenity may vary on the basis of
the different cultures, communities and countries.

In Ranjit D Udeshi case539, the constitutional validity of Section 292 was

challenged as constituting an unreasonable restriction on the freedom of speech and
expressions. Supreme Court while dealing with the question whether the accused
persons, who were partners of a book stall, committed the offence under Section 292 of
the Indian Penal Code (1860) as they were found in possession for the purpose of sale
copies of an alleged obscene book called "Lady Chatterley 's Lover", considered the test
of obscenity, and held thus:

538
http://www.britannica.com/EBchecked/topic/424001/obscenity,Last visited on 29th January 2012
539
Ranjit D Udeshi V. State of Maharastra 1965 AIR 881, 1965 SCR

213
 “...I think the test of obscenity is this whether the tendency of the matter charged
as obscenity is to deprave and corrupt those whose minds are open to such immoral
influences, and into whose hands a publication of this sort may fall. ...it is quite certain
that it would suggest to the minds of the young of either sex, or even to persons of more
advanced years, thoughts of a most impure and libidinous character.”

However, very soon Supreme Court modified the decision of the Udeshi case in
Chandakrant Rakodhar case540. In this case Supreme Court observed that the standard
of obscenity could not be such as to insist that it was the responsibility of the writer to
protect adolescents from references to sex since that would be forced to write only for
adolescents and not for adults. The court also observed that if the reference of sex is
considered as obscene no books could be published except religious books.

Again, in K. A. Abbas case541, Supreme Court observed that our standard of

obscenity should not be such that “the protection of the least capable and most depraved
amongst us” determines what the general public can view or read And the standard must
be supportive of freedom of expression and must allow for a creative interpretation of
life and society. The line should only be drawn where average man begins to feel
embarrassed or disgusted. In Raj Kapoor case542 Justice Krishna Iyer stated that freedom
of expression is fundamental, the Censor can’t act as a moral tailor and can’t interpret
Article 19(2) to stifle expression. In Bobby Art International (Phoolan Devi Case),
case543 the Supreme Court observed that the rape scene in the Bandit Queen film is not
intended to arouse prurient or lascivious but revulsion against the perpetrators and pity
for the victims.

In Samaresh Bose case,544 it was observed by the Supreme Court that "The
concept of obscenity is moulded to a very great extent by the social outlook of the people
who are generally expected to read the book. It is beyond dispute that the concept of
obscenity usually differs from country to country depending on the standards of morality
of contemporary society in different countries. In our opinion, in judging the question of

540
Chandakrant Rakodhar V. State of Maharashtra case AIR 1970 SC 1390
541
K. A. Abbas V. Union of India (1970) 2 SCC 780
542
Raj Kapoor v. Laxman AIR 1980 SC 605
543
Bobby Art International v Ompal Singh Hoon (1996) 4 SCC 1
544
Samaresh Bose v. Amal Mitra AIR 1986 SC 967

214
obscenity, the Judge in the first place should try to place himself in the position of the
author and from the view point of the author the judge should thereafter place himself in
the position of a reader of every age group in whose hands the books is likely to fall and
should try to appreciate what kind of possible influence the book is likely to have in the
minds of the reader. The judge should thereafter apply his judicial mind dispassionately
to decide whether the book in question can be said to be obscene within the meaning of
S.292, IPC by an objective assessment of the book as a whole and also of the passage
complained of as obscene separately.”

In DG, Doordarshan case545, Court directing Doordarshan to telecast film

“Father, Son and Holy War”, held that.

“In our opinion the respondent has a right to convey his perception on the
oppression of women, flawed understanding of manhood and evils of communal
violence through documentary film produced by him. The freedom of expression which
is constitutionally protected can’t be held to ransom on a mere fall of a hat. The film in
its entirety has a serious message to convey and is relevant in present text. Doordarshan
being a state controlled agency funded by public funds could not have denied access to
screen the respondent’s documentary except on specified valid grounds.”

In Preethimon case546 it was held by the court that “A vague or general statement
in the FIR that the accused showered obscene words is not enough to constitute an
offence under Section 294(b). It is necessary to state the words uttered by the accused.
The prosecution would not be justified in bringing in the evidence for the first time the
words allegedly spoken to by the accused, when the same is not recorded in the
First Information Statement in a case instituted upon police report. The complaint or the
FIR, as the case may be, shall contain the words spoken to by the accused, which,
according to the prosecution, would attract the offence under Section 294(b) of the
Indian Penal Code or else, there is every possibility of evidence being tendered putting
forth any words as the prosecution witnesses may wish to put forward improving upon or
adding to the allegation in the complaint or FIR causing great prejudice to the accused
and depriving his right to have a fair trial.”

545
DG, Doordarshan v. Anand Patwardhan (2006) 8 SCC 433: AIR 2006 SC 3346,3354
546
Preethimon And Anr. vs State Of Kerala 2008 CrLJ 1233 (Ker).

215
 However, it is our expectation that the courts in India shall make inquiries into
the objective merits of the case to make analysis and develop a new worth of their own to
judge obscenity from time to time.

2. Outraging the Modesty of a Woman - Outraging the modesty of a

woman is the most essential ingredient of Sec 354 of IPC. The term modesty has not
been defined anywhere in the code. In Ram Kripal case547, Supreme Court says –
“Modesty is an attribute associated with female human being 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.”

However, in state of Major Singh case,548 the question before the court came for
a discussion that a child of 7 years and half months old could be said to be possessed of
modesty which could be outraged. Court held “The offence punishable under Section
354 is an assault on or use of criminal force to a woman with the intention of outraging
her modesty or with the knowledge of the likelihood of doing so”. While giving
definition of woman's modesty, the Court said.

“I think that the essence of a woman's modesty is her sex. The modesty of an
adult female is writ large on her body. Young or old, intelligent or imbecile, awake or
sleeping, the woman possesses modesty capable of being outraged. Whoever uses
criminal force to her with intent to outrage her modesty commits an offence punishable
under s. 354. 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, as, for example,
when the accused with a corrupt mind stealthily touches the flesh of a sleeping woman.
She may be an idiot, she may be under the spell of anesthesia, she may be sleeping, she
may be unable to appreciate the significance of the act; nevertheless, the offender is
punishable under the section. A female of tender age stands on a somewhat different

547
Ram Kripal v. State of M. P AIR 2007 SC 49
548
Punjab v. Major Singh AIR 1967 SC 63

216
footing. Her body is immature, and her sexual powers are dormant. In this case, the
victim is a baby seven and half months old. She has not yet developed a sense of shame
and has no awareness of sex. Nevertheless, from her very birth she possesses the
modesty which is the attribute of her sex. But cases must be rare indeed where the
offender can be shown to have acted with the intention of 294”

549
In Hamsa , the Kerala High Court held “…The question of infringing the
modesty of woman would of course depend upon the customs and habits of the people.
Acts which are outrageous to morality would be outraging to modesty of woman. No
particular yardstick of universal application can be made for measuring the amplitude of
modesty of woman, as it may vary from country to country or society to society.”

In Rupam Deol Bajaj case550 Supreme Court clarified that slapping a women on
her posterior amounted to outraging of her modesty within Sections 354 and 509 of
Indian Penal Code. Hon’ble Justice Dr. A.S. Anand and M.K. Mukherjee of Supreme
Court observed that “the allegation contained in the FIR constitute offences under
section 354 and 509 IPC. Indian Penal Code does not define the word `modesty’. From
the dictionary meaning of `modesty’ and the interpretation given to that word by the
Supreme Court in Major Singh case it appears that the ultimate test for ascertaining
whether modesty has been outraged is the action of the offender such as could be
perceived as one, which is capable of shocking the sense of decency of a woman. When
the above test is applied in the present case, keeping in view the total fact situation, it
must be held that the alleged act of the respondent in slapping the appellant on her
posterior amounted to “outraging of her modesty” for it was not only an affront to the
normal sense of feminine decency but also an affront to the dignity of the lady- “Sexual
overtones” or not, notwithstanding”.

The right of women to be treated with decency was taken note of by the Supreme
Court in the Baldev Singh551 cases wherein the Supreme Court held that even in cases
where it is necessary to search a woman, the search shall be made by another woman,
with strict regard to decency. Failure to do so may not only affect the credibility of the

549
State of Kerela v. Hamsa (1988) crimes 161,
550
Rupam Deol Bajaj v. Gill AIR 1996 SC 309 : 1995 SCC (6) 194
551
State of Punjab Vs. Baldev Singh 1999(6) SCC 172

217
prosecution case, but may also be found violative of the basic right of a woman to be
treated with decency and proper dignity.

552
In Shivraj Chandrappa Yadav case Justice Vishnu Sahai said that “It is well
settled that where conviction is founded on a concurrent finding of fact the revision court
does not interfere unless they can be stigmatized as being perverse. After giving most
anxious consideration in my view, the petitioner does not deserve even an iota of
sympathy. Accepting the submission of Mr. B. R. Patil, in a case like this in my view,
would be adding insult to the injury. Sunita would feel humiliated in realizing that for the
depraved act which the petitioner committed on her she is being monetarily
compensated. It would rekindle the memories of the nauseating incident in her mind and
revive the traumatic memories which after an efflux of time and with great difficulty she
would have forgotten, 11 years ago, when the incident took place”.

In Main Pal553 case, the Court held that “One of the cardinal principles of natural
justice is that no man should be condemned without being heard, (audi alteram partem).
But the law reports are replete with instances of courts hesitating to approve the
contention that failure of justice had occasioned merely because a person was not heard
on a particular aspect. However, if the aspect is of such a nature that non-explanation of
it has contributed to penalizing an individual, the court should say that since he was not
given the opportunity to explain that aspect there was failure of justice on account of
non-compliance with the principle of natural justice & quote; The above principles are
reiterated in several decisions of this Court, including Laisal Haque case554 ,
Thakkidiram Reddy case555 , Dalbir Singh case556, Dumpala Chandra Reddy case
557
and Sanichar Sahni case558. However, the Court also said that “Every reasonable
presumption must be made in favour of an accused person; he must be given the benefit
of every reasonable doubt. The same broad principles of justice and fair play must be
brought to bear when determining a matter of prejudice as in adjudging guilt. But when
all is said and done what we are concerned to see is whether the accused had a fair trial,

552
Shivraj Chandrappa Yadav Vs. State of Maharastra 1998Cri. L. J. 3168
553
Main Pal v State of Haryana (2010) 10 SCC 130
554
State of west Bengal v.Laisal Haque AIR 1989 SC 129
555
State of A.P. vs. Thakkidiram Reddy 1998 (6) SCC 554
556
Dalbir Singh v. State of UP 2004 (5) SCC 334
557
Dumpala Chandra Reddy v.Nimakayala Bali Reddy 2008 (8) SCC 339
558
Sanichar Sahni 2009 (7) SCC 198

218
whether he knew what he was being tried for, whether the main facts sought to be
established against him were explained to him fairly and clearly and whether he was
given a full and fair chance to defend himself. If all these elements are there and no
prejudice is shown the conviction must stand whatever the irregularities whether
traceable to the charge or to a want of one”. Recently in Pritam Singh case559, Court
convicted the accused under section 354 of IPC and rejected the plea of the accused that
the father will use his daughter’s image to take out personal vengeance. The Court held
that in Indian society, no woman will be used by person for purpose of wreaking
personal vengeance.

The existing laws and legal procedures put down the victim much more than the
offender. The Court takes long time to give remedy to the victim due to the slow judicial
process. Some of the accused are released on bail. It is quite shameful for a woman to
live in a society where her offender is loitering by raging his head without getting fear. In
this way it can ravish the total generation. However, Courts are now awarding
compensations to the victims of crime in addition to the punishing the offender.560 Now
any victim of sexual harassment can move the court by filing writ petition under Art.32
of the constitution.

3. Dowry Death - The degradation of society due to the pernicious system of

dowry and the unconscionable demands made by the greedy and unscrupulous husbands
and their parents and relatives resulting in an alarming number of suicidal and dowry
deaths by women has shocked the legislative conscience to such an extent that the
legislature has deemed it necessary to provide additional provisions of law, procedural as
well as substantive, to combat the evil.561 There is no doubt that dowry is the most evil
practice that makes the life of women miserable. Our Judiciary is very much concern
about the pernicious effect of dowry in its various forms. Supreme Court562 said
“Marriages are made in heaven, is an adage. A bride leaves the paternal home for
matrimonial home leaving behind sweet memories therewith a hope that she will see a
new world full of love in her groom’s house. She leaves behind not only her memories,

559
Pritam Singh v.State of H.P 2012 Cr.L.J. 468
560
Roopan Deol Bajaj v. KPS Gill AIR 2005
561
Brij Lal v Prem Chand 1991 SCC (Cri) 394
562
Kamlesh Panjiyar Vs State of Bihar (2005) 2 SCC 388.

219
but also her surname gotra and maidenhood. She expects not only to be daughter in law,
but a daughter in fact. Alas! The alarming rise in the number of cases involving
harassment to the newly wed girl for dowry shatters the dreams. In-laws are
characterized to be outlaws for perpetrating terrorism which destroys the matrimonial
home. The terrorist is dowry, and it is spreading tentacles in every possible direction.”

In Kundula Bala case,563 Supreme Court observed “of late there has been an
alarming increase in cases relating to harassment, torture, abetted Suicides and dowry
deaths of young innocent brides. This growing cult of violence and exploitation of the
young brides, though keeps on sending shock waves to the civilized society whenever it
happens, continues unabated. There is a constant erosion of the basic human values of
tolerance and the spirit of “live and let live.” Lack of education and economic
dependence of women have encouraged the greedy perpetrators of the crime. It is more
disturbing and sad that in most of such reported cases it is the woman who plays a
pivotal role in this crime against the younger woman, as in this case, with the husband
either acting as a mute spectator or even an active participant in the crime, in utter
disregard of his matrimonial obligations. In many cases, it has been noticed that the
husband, even after marriage, continues to be ‘Mamma’s baby’ and the umbilical cord
appears not to have been cut even at that stage!”

Court again said that “dowry has become a social menace. It is a vice which has
not even spared the rich, cultured and educated masses. Even the urban elite torture their
better-halves for dowry. Dowry is a disease which has eaten away the moral values on
which our society once upon a time thrived. A time has come when the courts have to be
firm so as to eradicate the disease. The legislature in its wisdom has not only enacted
Acts, but also suitably amended the Indian penal code so as to deal with the aforesaid
menace. But then while dealing with the prosecution reacting to such offences the court
cannot close their eyes to the fact that the provision are also misused by the unscrupulous
litigants to satisfy their personal vendetta. Often being enraged, innocent relatives are
roped in just for the sake of harassment and taking revenge. Thus, the court has to be
careful while dealing with the cases involving dowry torture.564

563
Kundula Bala Subrahmaniam V State of A.P,1993 Crl.L.J.1635
564
Benumadabpadhi v. state 2004 Cr. L. J 505 (H.C.)

220
 In M.V. Manjunam Gouda565, S.C. held that “The court can’t be oblivion to the
intention of the legislature and the purpose for which the enactment of the law and
amendment has been effected. Every court must be sensitized to the enactment of the law
and the purpose for which it is made by the legislature, keeping in view the evil practice
of giving and taking dowry, which is having a deleterious effect on the civilized society.
It must be given a meaningful interpretation so as to advance the cause of interest of the
society as a whole. No leniency is warranted to the perpetrator of the crime against the
society. Keeping these overall accounts and circumstances in the background, we are of
the view that deterrent punishment is called for”.

Wife taunted, maltreated and mentally tortured and died of unnatural death within
seven years of her marriage. Evidences showed that there was a persistent demand for
dowry since marriage. The Court held that when all the conditions of section 304B were
fulfilled, a presumption arose against the accused and they were required to rebut that
presumption in order to successfully defend themselves. In the present case accused
didn’t do so therefore conviction of accused under sections 304B, 498A and 201 of IPC
was held liable. However, similar view has been expressed in the cases like Kamesh
Panjiyar566, Kailash567 and Ram Badan Sharma568

In Pawan Kumar case569, the S. C. found that on account of not satisfying the
demand of certain goods, right from the next day, the wife was repeatedly taunted
maltreated and mentally tortured by calling her ugly etc. A Girl, dreams of great days
ahead with hope and aspiration when entering into a marriage, and if from the very next
day, the husband starts taunting for not bringing dowry and calling her ugly, there cannot
be greater mental torture, harassment or cruelty for any bride. There was a quarrel a day
before her death. The Supreme Court held that this by itself would constitute to be
willful act to be a cruelty both within the meaning of Section 498A and 304B.

565
M.V. Manjunam Gouda v state of kerala 2003 (1) crimes
566
See Supra note 61 at p.19
567
Kailash v. State of M.P AIR 2007 SC 107
568
Ram Badan Sharma v. State of Bihar (2007) 1SCC (cri )
569
Pawan Kumar v. State of Haryana 1998 Cr.L.J. 1144 AIR 1998 SC 958

221
 In Nallam Veera Satyanandam570 Case the evidence showed that the accused
husband and the in-laws practiced cruelty on the deceased for non-fulfillment of demand
for dowry and though in the first dying declaration before the Magistrate, she stated that
burn injuries had been received accidently, the court believed the second dying
declaration before the police constable which showed that she had committed suicide on
account of harassment, as it stood corroborated by oral and documentary evidence. In
Satvir Singh Case571, Supreme Court held that it is not enough that harassment or cruelty
was caused to the woman with a demand for dowry at sometime, if Section 304B is to be
invoked. But it should have happened “soon before her death.” The said phrase, no
doubt, is an elastic expression and can refer to a period either immediately before her
death within a few days or even a few weeks before it. But the proximity to her death is
the pivot indicated by that expression. The legislative object in providing such a radius of
time by employing the words “soon before her death” is to emphasis the idea that her
death should, in all probabilities, have been the aftermath of such cruelty or harassment.
In other words, there should be a perceptible nexus between her death and the dowry
related harassment or cruelty inflicted on her.

In Bhagat572case, the Supreme Court defined mental cruelty as “that conduct

which inflicts upon the other party such mental pain and suffering as would make it not
possible for that party to live with the other. It is a matter to be determined in each case,
having regard to the facts and circumstances of that case.

In Sushil Kumar Sharma case,573Supreme Court held that the object of the
Provision is prevention of the dowry menace. But as has been rightly contended by the
petitioner that many instances have come to light where the complaints are not bona fide
and have been filed with oblique motive. In such cases acquittal of the accused does not
in all cases wipe out the ignomy suffered during and prior to trial. Supreme Court has
suggested the following remedial measures by stating that the Courts have to take care of
the situation within the existing framework.
(1) the Courts and the investigating agencies should not deal with the allegations
casually.
570
Nallam Veera Satyanandam vs State of A.P. 1996 Cr. L.J. 4034.
571
Satvir Singh and others Vs State of Punjab and another, AIR 2001, SC 2828
572
Bhagat v. Bhagat AIR 1961 Punj 520
573
Sushil Kumar Sharma v. Union of India & others AIR 2005 SC 3100

222
 (2) the Courts should not follow any strait Jacket formula, any preconceived
notion or view.

However, Justice Markenday Katju has rightly expressed his opinion in Som
Mittal574 case the experiences have shown that the absence of the provision for
anticipatory bail has been causing great injustice and hardships to the citizens of U.P. for
instance, often false FIRs are filed e.g. under Section 498 A IPC & under Section 3 & 4
of Dowry Prohibition Act etc.

In Anand Mohan Sen575 case Court said that "Sitting in Appeal we are not
supposed to count the errors and take stock of the mistakes. It would serve no purpose
and it would be more appropriate to find out the remedy rather than to address us with
the disease. Reticence on the part of the court, in our view, has not helped the matter at
all. As observed by us earlier, in a first appeal we would not be correct to simply locate
the fault lines and keep quiet, but it would be expected of us to salvage the ruins from the
debris of a wanting situation and restore it to its pristine value for giving a wholesome
effect to the Criminal Justice System. After all we have to achieve the truth and merely
like a bad workman not find fault with the tools of the decision making process."

In Randhir Singh case576, it was observed: “Great stress was laid on the victim's
statement having not expressed before her friends about any harassment. In a tradition
and custom-bound Indian society no conservative woman would disclose family discords
before a person, however close he or she may be. Merely because the deceased had not
told close friends about the demand of dowry or harassment that does not positively
prove the absence of demand of dowry. The said circumstance has to be weighed along
with the evidence regarding demand of dowry. If the evidence regarding demand of
dowry is established, is cogent and reliable merely because the victim had not stated
before some persons about the harassment or torture that would be really of no
consequence."

574
Som Mittal v Govt. of Karnataka 2008 (2) SCC; Appeal (crl.) 206 of 2008
575
Anand Mohan Sen and Another v. State of West Bengal 2007 (7) Scale 254.
576
Randhir Singh v. State of Punjab (2004) 13 SCC 129

223
 In Orilal Jaisawal case577, the Court observed that “the courts should be
extremely careful in assessing the facts and circumstances of each case and the evidence
adduced in the trial for the purpose of finding whether the cruelty meted out to the victim
had in fact induced her to end the life by committing suicide. If it transpires to the court
that a victim committing suicide was hypersensitive to ordinary petulance, discord and
differences in domestic life quite common to the society to which the victim belonged
and such petulance, discord and differences were not expected to induce a similarly
circumstanced individual in a given society to commit suicide, the conscience of the
court should not be satisfied for basing a finding that the accused charged of abetting the
offence of suicide should be found guilty."

In Prem Kumar case578, S.C. held that “A conjoint reading of Section 113-B of
the Evidence Act and Section 304-B IPC shows that there must be material to show that
soon before her death the victim was subjected to cruelty or harassment. Prosecution has
to rule out the possibility of a natural or accidental death so as to bring it within the
purview of the `death occurring otherwise than in normal circumstances'. The expression
`soon before' is very relevant where Section 113-B of the Evidence Act and Section 304-
B IPC are pressed into service. Prosecution is obliged to show that soon before the
occurrence there was cruelty or harassment and only in that case presumption
operates..….There must be existence of a proximate and live- link between the effects 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.”

In Jaggu Ram case579, S.C. held that “the evidence shows that the appellant
appears to have been compelled by some inner urge to admit his criminality. Such
behaviour cannot be considered unnatural….”

In Trimukh Maroti Kirkan580, Justice G. P. Mathur considered the applicability

of Section 106 of the Evidence Act and observed:

577
State of west Bengal v Orilal Jaisawal AIR 1994 SC 1418
578
Prem Kumar Dhandu Vs. State of Rajasthan & Others. (2) S.B. Civil Writ Petition No.1835/2009.
579
State of Rajasthan v Jaggu Ram AIR 2008 SC 982,
580
Trimukh Maroti Kirkan vs. State of Maharashtra 2006 (1) SCC 681

224
 “The demand for dowry or money from the parents of the bride has shown a
phenomenal increase in the last few years. Cases are frequently coming before
the courts, where the husband or in-laws have gone to the extent of killing the
bride if the demand is not met. These crimes are generally committed in complete
secrecy inside the house and it becomes very difficult for the prosecution to lead
evidence. No member of the family, even if he is a witness of the crime, would
come forward to depose against another family member”.

Justice Arijit Pasayat, in Karnail Singh581, The Court said “law does not enjoin a
duty on the prosecution to lead evidence of such character which is almost impossible to
be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead
such evidence which it is capable of leading, having regard to the facts and
circumstances of the case. Here it is necessary to keep in mind Section 106 of the
Evidence Act which says that when any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him. Illustration (b) appended to this
section throws some light on the content and scope of this provision and it reads: A is
charged with travelling on a railway without ticket. The burden of proving that he had a
ticket is on him.”

The Court also said that “Where an offence like murder is committed in secrecy
inside a house, the initial burden to establish the case would undoubtedly be upon the
prosecution, but the nature and amount of evidence to be led by it to establish the charge
cannot be of the same degree as is required in other cases of circumstantial evidence. The
burden would be of a comparatively lighter character. In view of Section 106 of the
Evidence Act there will be a corresponding burden on the inmates of the house to give a
cogent explanation as to how the crime was committed. The inmates of the house cannot
get away by simply keeping quiet and offering no explanation on the supposed premise
that the burden to establish its case lies entirely upon the prosecution and there is no duty
at all on an accused to offer any explanation.” Similar view has been expressed in Kashi
Ram582, and Raj Kumar Prasad Tamakar case583. In Bhajju alias Karan Singh584 case

581
State of Punjab v. Karnail Singh 2003 (11) SCC 271
582
State of Rajasthan vs. Kashi Ram 2006 (12) SCC 254
583
Raj kumar Prasad Tomakar v. State of Bihar 2007 (1) SCR13
584
Bhajju alias Karan Singh v. State of M.P 2012 Cri.L.J

225
S.C. said that once the Court is satisfied that the declaration was true and voluntary; it
undoubtedly can base its conviction on the dying declaration.

However, the Law Commission of India also recommended for the capital
punishment for the dowry death cases on the basis of the judicial observation especially
Allahabad High Court’s Order dated 31st January, 2003 in the matter of Nathu case585
wherein Katju J. observed “In my opinion dowry death is worse than murder but
surprisingly there is no death penalty for it whereas death penalty can be given for
murder. In my opinion the time has come when law be amended and death sentence
should be permitted in cases of dowry deaths”. The Hon’ble Judge directed that a copy
of the order be sent by the Registrar General of the Court to Hon’ble Law Minister and
Hon’ble Home Minister with a request that they might consider introducing a Bill in the
Parliament for such amendment or an Ordinance by the Central Government to the same
effect. Justice Katju and Justice Deepak Verma observed that barbaric acts like men
killing their wives by pouring kerosene and setting them ablaze could be checked only
by awarding death penalty in such cases. Hon’ble Judges said that they want to see such
people to be hanged. Then only such barbaric acts will stop from our society.586

The Court has to play a significant role to prevent such crime by considering such
cases in a more practical manner and should not allow the criminals to escape by taking
the help of procedural technicalities or lacunae in the existing laws. To some extent
Court is trying to fulfill its task, but its working is not up to the mark. The court is
expected to be more responsive regarding crime against women. But, unfortunately most
of the criminals in dowry death cases are released on the ground of benefit of doubt due
to lack of evidences. It creates reluctance in the mind of the victims not to approach the
Court. The trial Courts in these cases are not sensitive enough to deal with the cases with
proper caution and unnoticed the essential issues of the case without even correctly
arguing the same.

4. Termination of Pregnancy and Female Foeticide - Our Judiciary

is also very much responsive regarding the termination of pregnancy for no cause or

585
Nathu v.State of U.P. Criminal Bail Application No.12466 of 2002
586
The Tribune, June,1, 2009

226
unjustified cause and to control the activities related to female foeticide. In Dr. Jacob
George case 587 death of a woman was caused while causing miscarriage. Accused was a
homeopath, who operated the deceased for abortion, but patient died following few hours
after operation. Evidence of cousin of deceased, who accompanied the deceased at
hospital had played vital role in the entire episode. The Court held the accused as liable
to conviction under Section 314 IPC. In Nand Kishore Sharma case588The Court clearly
stated that medical termination of Pregnancy or abortion is necessary where continuance
of pregnancy is likely to involve risk to life of pregnant woman or cause grave injury to
her physical and mental health.

In the case of female foeticide, the constitutionality of the Prenatal Diagnostic

Techniques Act 1994 was challenged on the ground of violation of Article 21 of the
Indian constitution was rejected by the Supreme Court589.However, in CEHAT case590
S.C. directed all states to confisticate ultrasound equipment from clinics that are being
run without licences. The Health secretaries of various states were present to explain the
steps taken to implement the Prenatal Diagnostic Techniques Act 1994.A bench
comprising Arijit Pasayat, M. B. Shah and B. N. Agarwal JJ. Said “State governments
are directed to take immediate action if such machines were being used in clinics without
license. The machines are to be seized and sealed for the time being”. In Malpani
Infertility Clinic (p) Ltd case591,the petitioner sought to challenge the order, under the
provisions of Pre-natal Diagnostic Techniques (prohibition of sex selection) Act 1994
suspending the registration of the petitioners Diagnostic Centre on the ground that his
activity of sex determination was done for ‘family- balancing’. However, later on he
apologized for his work. In Dr.Chitra Agarwal case592, the petitioner, a practicing doctor
challenged the cancellation of registration of her ultrasound centre. S.C. said that
initiation of criminal proceeding against the ultrasound Centre is not a bar for deciding
appeal against cancellation of its registration. The registration was cancelled for the
violation of the provisions of PNDT Act and the rules. In Vijay Sharma case593,the Court
held that Pre-natal Diagnostic Techniques (prohibition of sex selection) Amendment Act

587
Dr. Jacob George v. State of Kerala 1994 AIR SCW 2282 (2285,2286): 1994 SCC (Cri) 774.
588
Nand Kishore Sharma v Union of India AIR 2006 Raj 166
589
Vinod Soni v.Union of India 2005, Cr.L.J 3408
590
CEHAT V. Union of India ( 2001) 5 SCC 577
591
Malpani Infertility Clinic (p) Ltd v. Approprite Authority PNDT Act AIR 2005 Bom 26
592
Chitra Agarwal (Dr.) v. State of Uttaranchal AIR 2006 Utt.78
593
Vijay Sharma v.Union of India AIR 2008 Bom 31

227
2002 are clear and unambiguous, therefore it is not necessary for the Central Govt. to
issue any order regarding removal of difficulties in the official gazette.

Supreme Court in several cases directed the state Govt. to take action against
many ultrasound centres violating the norms of PNDT Act 1994 and thereby compelled
them to register the ultrasound machine. The Court also warned the health secretaries of
states failing to implement its order banning sex determination of foetus would be
required to be present before the court to show cause.

5. kidnapping and Prostitution - “Women found in flesh trade, should be

viewed more as victims of adverse socioeconomic circumstances rather than as offenders
in our society. The commercial exploitation of sex may be regarded as a crime but those
trapped in custom-oriented prostitution and gender-oriented prostitution should be
viewed as victims of gender oriented vulnerability.”594 In Re Ratnamala,595 case it was
observed that it is no doubt true that what is aimed at under the Act is not abolition of
prostitutes and prostitutions as such and make it per se a criminal offence or punish a
woman because she prostitutes herself, the purport of the enactment was to inhibit or
abolish commercialized vice, namely, traffic in women and girls for purpose of
prostitution as an organized means of living“ In Shefali Banerjee596 case, it was again
said that the Act is a measures to eradicate a social evil in pursuance of the International
Convention signed at New York in May 1950.

However, in Unnikumar, In Re,597 it was stated that a solitary instance of

prostitution committed within any house or room or place would not satisfy the
ingredients of a brothel. In Radha Bai,598 case the petitioner protest against the home
minister of Pondicherry alleging that he was misusing the protective home for women for
immoral purposes handed her in deep trouble. The Commissioner suggested the closing
down of such homes immediately.

594
Gaurav Jain v.U.O.I.AIR,1997 302
595
Re Ratnamala AIR 1962 Mad 31
596
Shefali Banerjee v.State AIR1969 Cal.544.
597
Unnikumar, In re 1975 1MLJ 22
598
Radha Bai vUnion territory of Pondicherry (1995)

228
 In Gaurav Jain case599 “Women found in flesh trade, should be viewed more as
victims of adverse socioeconomic circumstances rather than as offenders in our society.
The commercial exploitation of sex may be regarded as a crime but those trapped in
custom-oriented prostitution and gender-oriented prostitution should be viewed as
victims of gender oriented vulnerability.”“Economic rehabilitation is one of the factors
that prevent the practice of dedication of the young girls to the prostitution as Devadasis,
Jogins or Venkatasins. Their economic empowerment and education gives resistance to
such exploitation; however, economic programmes are necessary to rehabilitate such
victims of customs or practices. They are being rehabilitated with the help of vocational
training centres in some States by giving them preferential admission into educational
training institutes”.“The society should make reparation to prevent trafficking in women,
rescue them from red light areas and other areas in which the women are driven or
trapped in prostitution. Their rehabilitation by socio-economic empowerment and justice
is the constitutional duty of the State. Their economic empowerment and social justice
with dignity of person, are the fundamental rights and the Court and the Government
should positively endeavour to ensure them” In Vishal Jeet case600, the court held that
the Act deals with not only a social but also a socio-economic problem. Therefore, the
provisions of the legislation are more preventive than punitive.

The Supreme Court had issued notice to all states while noting down the concern
on the pathetic conditions of Sex Workers:“Although we have dismissed this Appeal, we
strongly feel that the Central and the State Governments through Social Welfare Boards
should prepare schemes for rehabilitation all over the country for physically and sexually
abused women commonly known as prostitutes as we are of the view that the prostitutes
also have a right to live with dignity under Article 21 of the Constitution of India since
they are also human beings and their problems also need to be addressed. As already
observed by us, a woman is compelled to indulge in prostitution not for pleasure but
because of abject poverty. If such a woman is granted opportunity to avail some
technical or vocational training, she would be able to earn her livelihood by such
vocational training and skill instead of by selling her body. Hence, we direct the Central
and the State Governments to prepare schemes for giving technical/vocational training to
sex workers and sexually abused women in all cities in India. The schemes should

599
See Supra note594 at p228
600
Vishal Jeet v. Union of India (1990) 3 SCC 318

229
mention in detail who will give the technical/vocational training and in what manner they
can be rehabilitated and settled by offering them employment. For instance, if a technical
training is for some craft like sewing garments, etc. then some arrangements should also
be made for providing a market for such garments, otherwise they will remain unsold
and unused, and consequently the women will not be able to feed herself.”

We propose to have the response of the Centre and the States in this regard and
hence the case shall be listed before us again on 04.05.2011 to be taken up as first case
on which date the first compliance report indicating there in the first steps taken by the
Central and the State Governments in this regard shall be submitted. Issue notice to the
Central Government and all the State Governments which will also file responses by the
date fixed for hearing.”601

Actually, to control the cases of prostitution is very tough for the Judiciary. It has
to fulfill the two tasks at the same time i.e. to protect the rights of the prostitutes and to
protect the society from the adverse effect of the prostitution. As it is not possible to
band the prostitution from the society totally602, Judiciary is very much concern about the
rehabilitation of the prostitutes. Indeed, this is the right time to think carefully about the
victims of human trafficking. It is not the time to think about ifs and buts- it is time for
action.603

6. Rape - “Rape is the destruction of dignity through invasion of another person’s

body without her consent. Justice Prabha Sridevan said that, “Though the victim of this
violence can be a child, a woman or a man. The anatomy of rape is common to all. But I
will continue to use the pronoun “her”, since the majority of victims of sexual violence
are female. Rape is a deliberate negation of the right over one’s body.”604

Rape is considered as a most heinous crime on women as it is the only crime

where the victim’s reputation is socially dishonored. We have various laws to regulate

601
http://indialawyers.wordpress.com/2011/07/25/rehabilitation-of-women-in-prostitution-%E2%80%93-
a-time-for-action/Last visited on January 29th January,2012
602
64th Law Commission Report.
603
See Supra note 599 and 600at p.229
604
Justice Prabha Sridevan in the Hindu, Source- WWW.indialawyer.com Last visited on 23th Sept,2012

230
such crime. Judiciary is trying to prevent such crime by expanding its scope in a more
illustrative manner.

In recent case of Chhotey Lal,605 Highlighting the difference between ‘will’ and
‘consent’, the court said that a nod for sexual relations obtained by a man on the false
pretext would not amount to a ‘legal or valid’ consent to save him from punishment for
rape. Even if there were mutual consent, if the consent is based on a false pretext made
by the man then the consent would stand as null and void and the intercourse be termed
as rape.

In 2007, the Supreme Court struck down the decision of the Karnataka High
Court in Baldev Singh’s case606 which had reduced the sentence of a convicted rapist to
3 and a half years. The High Court had stated that the sentence should be reduced since
the accused was “a young boy of 18 years belonging to Vaddara Community and
illiterate”. The Supreme Court stated that there is a legislative mandate to impose a
sentence for not less than 10 years. Only in exceptional cases, for “adequate and special
reasons” can a sentence less than 10 years be imposed. It overturned the Karnataka High
Court decision saying that there was an “absence of any reason which could have been
treated as “special and adequate reason”.

In Madhukar Narayan Mardikar607, The Supreme Court opined that “even a

woman with easy virtue is entitled to privacy and no one can invade her privacy as and
when he likes… Therefore, merely because she is a woman of easy virtue, her evidence
cannot be thrown overboard.”

In Rafiq.608 Justice Krisna Iyer, stated that “…When a woman is ravished what is
inflicted is not merely physical injury but the deep sense of deathless shame...Judicial
response to human rights can’t be blunted by legal bigotry.”

In Delhi Domestic Working Women’s Forum case,609 Supreme Court has

indicated the following broad parameters in assisting the victims of Rape as under.

605
U.P. v. Chhotey Lal (2011) 2 SCC 550
606
CRIMINAL APPEAL NO. 749 OF 2007
607
State of Maharashtra v Madhukar Narayan Mardikar AIR 1991 SC 207
608
Rafiq v. State of U.P (1980) 4SCC 262

231
 (1) The complainants of sexual assault cases should be provided with legal
representation. It is important to have someone who is well-acquainted with the criminal
justice system. The role of the victim’s advocate would not only be to explain to the
victim the nature of the proceedings, to prepare her for the case and to assist her in the
police station and in court but to provide her with guidance as to how she might obtain
help of a different nature from other agencies, for example, mind counseling or medical
assistance. It is important to secure continuity of assistance by ensuring that the same
person who looked after the complainant’s interests in the police station represents her
till the end of the case.
(2) Legal assistance will have to be provided at the police station since the victim
of sexual assault might very well be in a distressed state upon arrival at the police station,
the guidance and support of a lawyer at this stage and whilst she was being questioned
would be a great assistance to her.
(3) The police should be under a duty to inform the victim of her right to
representation before any questions were asked of her and that the police report should
state that the victim was so informed.
(4) A list of advocates willing to act in these cases should be kept the police
station for victims who did not have a particular lawyer in mind or whose own lawyer
was unavailable.
(5) The advocate shall be appointed by the court, upon application by the police
at the earliest convenient moment, but in order to ensure that victims were questioned
without undue delay, advocates would be authorised to act at the police station before
leave of the court was sought or obtained.
(6) In all rape trials anonymity of the victim must be maintained, as far as
necessary.
(7) It is necessary, having regard to the Directive Principles contained under
Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board
as rape victims frequently incur substantial financial loss. Some, for example, are too
traumatised to continue in employment.
(8) Compensation for victims shall be awarded by the court on conviction of the
offender and by the Criminal Injuries Compensation Board whether or not a conviction
has taken place. The Board will take into account pain, suffering and shock as well as

609
Delhi Domestic Working Women’s Forum vs. U.O.I (1995) 1SCC 14

232
loss of earnings due to pregnancy and the expenses of child birth if this occurred as a
result of the rape.

Again, in the case of Pappu,610 the Supreme Court held that even a prostitute has
a right to privacy and no person can rape her just because she is a woman of easy virtue.
Supreme Court in Babulal case 611 said that “Rape is the ultimate violation of the self .It
is humiliating even in a women’s life which leads to fear for existence and a sense of
powerlessness. Once a person is convicted for an offence of rape, he should be treated
with a heavy hand and underserved indulgence or liberal attitude is not warding sentence
adequately in such cases and would amount to allowing the even to encourage potential
criminals. The society can no longer endure under such serious threats. The Courts must
hear the sound cry for justice by society in cases of heinous crime of rape and impose
adequate sentence.”

However, in Bodhisattwa Goutam612 Supreme Court held the “Rape is not a

crime against the person of a woman. It is a crime against the entire society. It destroys
the entire psychology of a woman and pushes her into emotional crisis. It is a crime
against basic human rights and is also violative of the victim’s most cherished of the
Fundamental Rights, namely, the right to life contained in Article 21.To many feminists
and psychiatrists rape is less a sexual offence than an act of aggression aimed at
degrading and humiliating women.” In Vishal Jeet613 and in Gaurav Jain,614 Supreme
Court applies Article 23 and Article 21 together. Protection of women’s dignity in work
place against sexual harassment was made through judicial directions in vishakha. One
of the most important Pronouncements of the Court is to hold rape as vilest invasion of
women’s right to privacy and to award compensation to rape victim.

In Gurmit Singh615 , Justice Anand observed “of late, Crime against Women in
general and rape in particular is on the increase. It is in irony that while we are
celebrating woman’s right in all spheres we show little or no concern for her honour… A
murderer destroys the physical body of the victim; a rapist degrades the very soul of the
610
State of U.P. v Pappu,AIR 2005 SC1248
611
State of M.P v Babulal AIR 2008 SC 582
612
Bodhisattwa Goutam V. Subhra Chakraborty AIR 1996 SC 922
613
See Supra note 599 at p.229
614
See Supra note 600 at p.229
615
State of Punjab V. Gurmit Singh 1996 (2) SCC 384

233
helpless female. The Courts therefore shoulder a great responsibility while trying an
accused on charges of rape. They must deal with such cases with utmost sensitivity.”

In Pani Bhusan Behera616, the Orissa High Court has held that the rapture of
hymen is by no means necessary to constitute the offence of rape. Even a slightest
penetration in the vulva is sufficient to constitute the offence of rape. Vulva penetration
with or without violence is as much rape as vaginal penetration.

In Uttam Kumar617 Bombay High Court held that rape by two persons will be
sufficient to constitution the offence of gang rape.

In Francis Corallie Mullin618, Supreme Court of India through its inimitable

Judicial activism, added to the fundamental right to life and personal liberty a variety of
positive dimensions and significant humanitarian contours basically to enhance the
dignity and quality of the guaranteed right to life and to make life something more than
mere animal existence.

Medical Evidence in Rape Cases - The Supreme Court has held that the true rule of
prudence requires that in every case the advisability of corroboration should be present in
the mind of judge and that must be indicated in the judgement. But corroboration can be
dispensed with by the judge if in the particular circumstances of the case before him, he
himself is satisfied that it is safe to do so.619

In Gurmit Singh case, Supreme Court held that “unless there are compelling
reason, which necessitate looking for corroboration of her statement, the Court should
find no difficulty in acting on the testimony of a victim of sexual assault alone to convict
an accused when her testimony inspire confidence and is found to be reliable. Seeking
corroboration of her statement before relying upon the same, as a rule, amounts to adding
insult to injury”. Again, in Noor Khan620case, it was held that there is no rule of law that
testimony of a rape victim can’t be acted upon without corroboration in material

616
Pani Bhusan Behera v. State of Orissa 1992 AIR SCW 1480
617
Uttam Kumar v State 1991 Cr. LJ 1644 Bom
618
Francis Corallie Mullin v. Administrator, Union Territory of Delhi AIR 1981 SC 746,
619
Rameshwar vState of Rajasthan 1952 SCR 377
620
State of Rajasthan v Noor Khan (2000) 5 SCC 30

234
particulars. Her testimony has to be appreciated on the principle or probabilities just as
the testimony of any other witness; a high degree of probability having been shown to
exist in view of the subject-matter of a criminal charge. However, if the court finds it
difficult to accept the version of the prosecutrix on its face value, it may search for
evidence, direct or circumstantial, which would lend credence to her testimony.
Credence, short of corroboration, as understood in the context of an accomplice would
do. In Jameel621, a six years girl was a victim of unnatural offence under section 363 and
376 IPC. It was stated by the court that since the girl was hardly six finding it difficult,
the accused had intercourse through rectum and thus convicted under section 363,376
read with sections 511 and 377 I.P.C. In Arjun Toppo622 case, Jharkhand High Court
said that where the victim lady had a love affair with the appellant and happily consented
for physical enjoyment. She continued her intimacy with appellant even after his refusal
to marry her, has no right to turn round and implicate in a rape case.

Now, Court is in favour of punishing the offender with capital punishment. In

Amit case623, the Court cited several judgments, where judges were of the view that as
the rape was followed by a murder, death sentence was the appropriate
punishment.624But, A. K.Gnguly. J was of the view that as the accused was young in age
and may be rehabilitated in future, death sentence is not the appropriate punishment. S.C.
converted the death sentence on the plea that the accused is young person and there is no
evidence that he had committed the offence of kidnapping, rape and murder on any
earlier occasion.

The role of judiciary is no doubt worth mentioning in shaping the laws relating to
rape. Rape is considered as a most heinous crime on women. We have various laws to
regulate such crime but regarding the implementation of this law, we have to face many
problems due to lack of proper implementation machinery and we need to make an
attempt to have a hold upon it. Judiciary is trying to curb this issue defining these terms
in a more concrete manner. But, the existing laws and legal procedures put down the
victim much more than the offender.

621
Jameel v. State of Maharashtra (2007) 11 SCC 420
622
Arjun Toppo 2010 (2) AIR Jhar R 127
623
Amit v State of Uttar Pradesh 2012 Cr.L.J 1791
624
State of U.P. vSatish; Bantu v State of U.P.; Rameshbhai Chandubhai Rathod vState of Gujrat.

235
7. Marital Rape - However in certain countries like U.K. and Sweden, marital
rape has been made an offence. Recently, an enormous legislative and judicial motion is
shown around the world relating to marital rape. In India the problem of marital rape is
considered as a private matter. And, legislature has also showed no interest to legislate
on this matter. The Indian Penal Code 1860 permits the husband to rape his wife if she is
above the age of 15 years and is not living separately from him.

Supreme Court of India in several cases recognize that the right to life as
guaranteed under Article 21 does not mean merely human existence but it includes the
right to live with human dignity625 But unfortunately, Supreme Court restricted its role in
the matter of marital rape by giving strict interpretation of penal laws. Kerala High Court
in Sree Kumar 626 case observed that if the wife is subjected to Sexual intercourse by her
husband even against her will and without her consent and if the wife is not living
separately from her husband under a decree of separation or under any custom or usage
offence under Section 376A will not be attracted.

In Sakshi case627 Petitioner had filed a PIL before the Apex Court for the
issuance of an appropriate writ declaring inter alia that sexual intercourse under Section
375 of IPC should include all forms of penetration. The Court however dismissed the
writ petition by taking the defense of strict interpretation rule.

So the judiciary is avoiding its responsibility by taking the help of strict

interpretation of Section 375 IPC is not Justified. However, in the words of Shivkami
Ravichandran,628 strict interpretation does not prevent the Court from interpreting a
statute according to its current meaning and applying the language to consider the recent
scientific and social developments. Actually this type of behaviour is looked on as
private matter. And, legislature has also showed no interest to legislate on this matter.
Under such circumstances, only Judiciary can take the responsibility to save the life of
such married women, who is exploited by their intimate partner. Parliament should also
accept that rape is a rape and the relationship between the parties is of no importance.

625
Francis Coralie Mullin V The Administrator, Union Territory of Delhi AIR 1981 SC 746
626
Sree Kumar V. Pearly Karun Crl.M.C.No.1729 of 1998
627
Sakshi V. Union of India AIR 2004 SC 3566
628
“India Together” 19th Sept 2006

236
8. Cruelty by Husband and In-laws – The increasing number of dowry
deaths is a matter of great concern for the Judiciary. The cases of cruelty by the husband
and relatives of the husband in the matrimonial home leading woman to commit suicide
are become a common day incidents. The offence under Section 498-A of IPC is non
compoundable and non-bailable. When the wife reconciles with the husband and other
matrimonial relatives and wants to live together with them the court does not put any
restriction upon the wife to compound the complaint and to restitute her conjugal life
with her husband. It will be in the interest of justice, to respect the interest of
matrimonial relationship, the court allow them to compound the matter.629 In Virbhan
Singh630 S. C observed that instances of bride killing are alarmingly on the increase and
if the society should be rid of this growing evil, it is imperative that whenever dastardly
crimes of this nature are detected and the offence is brought home to the accused the
court must deal with the offender most ruthlessly and impose deterrent punishment. The
conduct of the accused and his father in not accepting the wife and new born baby for
nine months after her delivery amounts to cruelty.

In Bhagwant Singh case631 S.C. said “Young women of education, intelligence

and character do not set fire to themselves to welcome the embrace of death unless
provoked and compelled to that desperate step by the intolerance of their misery.” In
Krishanlal case,632 Punjab and Haryana High Court said Cruelty means harassment of
the woman where such harassment is with a view to coerce her or any person related to
her to meet any unlawful demand for any property or valuable security or on account of a
failure by her or any person related to her to meet such demand. Intent to injure is the
most important element of cruelty contemplated under Sec 498A.

In Rajammal case633 it was held by the court that the expression ‘cruelty’
postulates such treatment as to cause reasonable apprehension in the mind of the wife
that her living with the husband will be harmful and injurious to her life. To decide the
question of cruelty, the relevant factors are the matrimonial relationship between the
husband and wife, their cultural bent and temperament, status in life, state of health, and

629
State of Karnataka v.Basavaraju 1990(2)Crimes196 (Kant)
630
Virbhan Singh v State AIR 1983 SC 1002
631
Bhagwant Singh v. Commr. of police, Delhi (1983) 3 SCC 352,
632
Krishanlal v Union of India 1994 Cr. L.J. 347 & (P & H)
633
Rajammal v State 1993 Cri. L.J 3029

237
their interaction in their daily life. Where husband was of a highly suspicious nature and
made life difficult for the wife by demeaning and insulting her, calling her a prostitute,
not allowing her to meet others, denying her family life and comforts, conviction under
Sec 498A was held proper.

In Shri Daud Mohamad case634 In order to constitute cruelty it is not enough that
the conduct of the accused is willful and is offensively unjust to the woman, but it is
further necessary that the degree of intensity of such conduct on the part of the accused is
such as is likely to drive the woman to commit suicide or such conduct is likely to cause
grave injury or danger to her life or limb or to her mental and physical health. In
Manjula case,635S.C. said that a bride leaves the paternal home for matrimonial home
leaving behind memories and with a hope that a new world full of love will be in her
groom’s house …But the large number of cases flooding the courts with allegations or
torture ,harassment for dowry saddens the heart ………There is another angle involved
in the case, the evil design to harass the in- laws for petty things by making accusations
of dowry demand and torture. In such cases the vital question is whether laws are really
dynamic instruments fashioned by society for the purpose of human relations by
eliminating social tensions and conflicts are being used to harass and humiliate others
instead of being used as shield against injustice.” S.C observed that the concept of
cruelty has varied from time to time, from place to place and from individual to
individual636.

In Poonam Gupta case,637 the husband was unable to prove the case of cruelty by
his wife. The High Court held that while dealing with matrimonial cases, the Court has to
strike a balance between the strict compliance of law and the situation emerging from the
facts of the particular case. Under the scheme of the Act, dissolution of a marriage is
normally the last option which the Court should exercise. But when a situation comes up,
like the present one, where living together for the two of them is no longer possible or
practical, directing the parties to live together as husband and wife would be totally
meaningless.

634
Shri Daud Mohamad v State 1995 Cr. L.J. 2947
635
Manjula v.K.R.Mahesh (2006) 5 SCC 461
636
Vinita saxena v pankaj pandit, AIR 2006 S.C.1662
637
Poonam Gupta v.Ghanshyam Gupta AIR2003 Allahabad 51

238
 In Dr. Kiran Robinson case638, the High Court held it to be cruelty where an
educated lady despite doing all the household work was rebuked and faults were found.
She was forced to demand her share from her parent’s property so that she can give it to
her husband and in- laws. She was abused and beaten very often by her husband as he
demanded money to buy U.S. dollars.

639
Reference was made to V. Bhagat case, where the Supreme Court defined
mental cruelty as that conduct which inflicts upon the other party such mental pain and
suffering as would make it not possible for that party to live with the other. In other
words, mental cruelty must be of such a nature that the parties cannot reasonably be
expected to live together. The situation must be such that the wronged party cannot
reasonably be asked to put with such conduct and continue to live with the other party. It
is not necessary to prove that the mental cruelty is such as to cause injury to the health of
the petitioner. It also refers in Shobha Rani640case, where the Supreme Court observed
that the word "cruelty" is to be used in relation to human conduct or human behaviour. It
is the conduct in relation to or in respect of matrimonial duties and obligations. It is a
course of conduct of one which is adversely affecting the other. The cruelty may be
mental or physical, intentional or unintentional. The High Court further held it is not
always necessary that a course of conduct be deliberately undertaken for the purpose of
causing mental pain and suffering in order to constitute cruelty. Acts of alleged cruelty
may be judged by the effect produced and not by the motive provoking them.

In Inder Raj Malik641, it was contended that Section 498-A, I.P.C. is ultra-vires
in view of Article 14 and Article 20(2) of the Constitution of India, 1950. There is the
Dowry Prohibition Act which also deals with similar type of cases; therefore, both
statutes together create a situation commonly known as double jeopardy. But in the
present case the Delhi High Court negated this contention and held that Section 498-A,
I.P.C. is distinguishable from Section 4 of the Dowry Prohibition Act because in the
latter case mere demand of dowry is punishable and existence of element of cruelty is not
necessary, whereas Section 498-A, I.P.C. deals with aggravated form of offence. It
punishes for the cruel and inhuman behavior with the wife for the demand of property or

638
Dr. Kiran Robinson vs. Ajeet Malcolm Robinson and Others AIR 2003 DELHI 44
639
V. Bhagat vs. Mrs. D. Bhagat AIR 1994 SC 710
640
Shobha Rani v. Madhukar Reddi AIR 1988 SC 121
641
Inder Raj Malik v. Mrs. Sunita Malik

239
valuable security. Hence, a person can be prosecuted in respect of both the offences
punishable under Section 4 of the Dowry Prohibition Act and this section. It is just a case
similar to Section 5(2) of the Prevention of Corruption Act and Section 409 of the Indian
Penal Code.

The Supreme Court in Arun Vyas642case, held that “as the cruelty is a continuing
offence it cannot be said that the complaint of wife was time barred. It is, therefore,
appropriate for the courts, in case of delayed complaints, to construe liberally Section
473 Cr. P.C. in favour of wife who is subjected to cruelty if one the facts and in the
circumstances of the case it is necessary so to do in the interests of justice.” The Court
further observed that “when the conduct of the accused is such that applying the rule of
limitation will give an unfair advantage to him or result in miscarriage of justice, the
court may take cognizance of an offence after the expiry of period of limitation in the
interest of justice. This is only illustrative and not exhaustive.”

The S.C. rejected the plea of Mr. Koppisetti Subbarao that he was not liable to be
prosecuted under anti-dowry provision, since there was no valid marriage. Justices Arijit
Pasayat and A.K Ganguly said “the nomenclature of dowry does not have any magic
charm written over it. It is just a label given to demand of money in relation to marital to
marital relationship.”643

Presumption under Section 113-B of the Evidence Act - The Apex Court in Haans
644
Raj case observed that no presumption under Section 113-B of the Evidence Act
would be drawn against the accused if it is shown that after the alleged demand, cruelty
or harassment the dispute stood resolved and there was no evidence of cruelty and
harassment thereafter. Mere lapse of some time by itself would not provide to an accused
a defense if the course of conduct relating to cruelty and harassment in connection with
the dowry demand is shown to have existed earlier in time not too late and not to state
before the death of the woman. In the present case, it has been proved that the death of
Sunita Kumari by suicide had occurred within 7 years of her marriage and such death
cannot be stated to have occurred in normal circumstances. The term “normal

642
Arun Vyas and another v. Amita Vyas II (1999) DMC 247 (SC)
643
Sunday Times of India, May 3, 2009
644
Haans Raj v. State of Punjab 1985 SCR (1)1040

240
circumstances” apparently means natural death. The Apex Court further observed that
the High Court appears to have adopted casual approach in dealing with a specified
heinous crime considered to be a social crime.

Presumption under Section 113-A of the Evidence Act - A bare reading of Section
113-A of the Evidence Act shows that presumption under this section is not mandatory
and it is only permissive. In other words the presumption under this section is rebuttable
one. The Supreme Court in Gurbachan Singh645 observed that these provisions do not
create any new offence or any substantive right, but merely a matter of procedure and as
such are retrospective and applicable to the present case. “The presumption against
retrospection does not apply to legislation concerned merely with matters of procedure or
of evidence; on the contrary, the provisions of that nature are to be construed as
retrospective unless there is a clear indication that such was not the intention of
Parliament. The Supreme Court in Ramesh Kumar case,646 observed that this provision
was introduced by Criminal Law (Second) Amendment Act, 1983 with effect from 26-
12-1983 to meet a social demand to resolve difficulty of proof where helpless married
women were eliminated by being forced to commit suicide by the husband or in-laws
and incriminating evidence was usually available within the four corners of the
matrimonial home and hence was not available to anyone outside the house. However,
still it cannot be lost sight of that the presumption is intended to operate against the
accused in the field of criminal law. Before the presumption may be raised, the
foundation thereof must exist. The provisions contained in Section 113A show that to
attract the applicability of Section 113A it must be shown that
(i) the woman has committed suicide,
(ii) such suicide has been committed within a period of 7 years from the date
of her marriage,
(iii) The husband or his relatives, who are charged has subjected her to
cruelty.

On existence and availability of the above said circumstances, the court may
presume that such suicide had been abetted by her husband or by such relative of her
husband. The Parliament has chosen to sound a note of caution. Firstly, the presumption

645
Gurbachan Singh v. Satpal Singh 1990 Crl LJ 562 (SC
646
Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618:

241
is not mandatory, it is only permissive as the employment of expression “may presume”
suggests. Secondly, the existence and availability of the above said three circumstances
shall not, like a formula, enable the presumption being drawn; before the presumption
may be drawn the court shall have to have regard to ‘all the other circumstances of the
case.’ A consideration of all the other circumstances of the case may strengthen the
presumption or may dictate the conscience of the Court to abstain from drawing the
presumption. The expression – “The other circumstances of the case” used in Section
113-A suggests the need to reach a cause and effect relationship between the cruelty and
the suicide for the purpose of raising a presumption. Last but not the least; the
presumption is not an irrefutable one. In spite of a presumption having been raised the
evidence adduced in defense on the facts and circumstances otherwise available on
record may destroy the presumption. The phrase “may presume” used in Section 113-A
is defined in Section 4 of the Evidence Act, which says “Whenever it is provided by this
Act that court may presume a fact, it may neither regard such fact as proved unless and
until it is disproved or may call for proof of it. In Jiwan Lal case,647 the deceased wife
alleged to have committed suicide due to ill- treatment by accused husband. But no
offence against the accused proved in accordance with law. H.P. High Court said
conviction of the accused is improper and consequently the accused is acquitted of the
charges by giving him the benefit of doubt.

Actually Judiciary is very much active to give the remedy to the victim of cruelty
for dowry in the matrimonial home, but women are not very much interested to take the
help of judiciary to solve their problem. In most of the cases of cruelty, Judiciary is very
much responsive towards women and consequently plea of abuse of the section 498A
comes. It is very hard to prove the cases of cruelty as it occurs within four walls of house
and thus the judiciary is now very much conscious while dealing with the cases of
cruelty.

10. Problems of Working Women and Judiciary - In B. Shah648case,

the Court pointed out that: "Performance of the biological role of child bearing
necessarily involves withdrawal of a woman from the workforce for some period. During

647
Jiwan Lal v State of H.P. 2012Cri.L.J 1837
648
B. Shah v. P.O., Labour Court (1977) 4 SCC 384

242
this period she not only cannot work for her living but needs extra income for her
medical expenses. In order to enable the woman worker to subsist during this period and
to preserve her health, the law makes a provision for maternity benefit so that the woman
can play both her productive and reproductive roles efficiently." The Supreme Court also
held that the term P.O. week signifies a cycle of seven days including Sundays.
Maternity benefit is to be made for the entire period of the actual absence, i.e. for all days
including Sundays, which may be wage less holidays falling within that period, and not
only for intermittent periods of six days thereby excluding Sundays falling within that
period. Again the word ‘period’ emphasizes the continuous running of time and
recurrence of the cycle of seven days. These computations ensure that the woman worker
gets for the said period not only 100% of the wages but also benefits for Sundays and
rest days. In order to reduce the disparities relating to maternity provisions under the
various State and Central Acts referred to above, the Central Government enacted a new
Act, called the Maternity Benefit Act in 1961. By the end of the year 1972, the Act was
extended to the whole of the Indian Union. It applies to every establishment belonging to
the Government except those factories or establishments to which provisions of the
Employees' State Insurance Act, 1948 are applicable. It applies to every establishment
wherein persons are employed for the exhibition of equestrian, acrobatic and other
performances. It repealed the Mines Maternity Benefit Act, 1941, and the Bombay
Maternity Benefit Act, 1929. The State Governments have been empowered to extend all
or any of the provisions of this Act to any other establishment or class of establishments,
industries, .commercial, agricultural or otherwise, with the approval of the Central
Government by giving not less than two months notice of its intention of so doing. In
Nargesh Meerza649 case, a service regulation of the Air- India Corporation which
required air hostesses to retire on pregnancy was challenged. The Supreme Court found
this provision to be most arbitrary and unreasonable. It ruled “There was no reason why
pregnancy should stand in the way of continuance of service. By making pregnancy a bar
to continuance in service of an air hostess the corporation has adopted an unreasonable
individualized approach to a woman's physical capacity to continue to work even after
pregnancy.” The Supreme Court further held that “Termination of the services of an air
hostess under such circumstances is not only callous and cruel but an open insult to
Indian womanhood ……….Such a provision is therefore not only manifestly

649
Air India v Nagesh Meerza (1981) 4SCC 335

243
unreasonable and arbitrary but contains the quality of unfairness and exhibits naked
despotism and is therefore clearly violative of Article 14.”

Recently, NCW recommended for the extension of the maternity leave period
from three months to six months so that a nursing mother can feed her baby for six
months. The Supreme Court in the case of Vikramdeo Singh Tomar case650, while
dealing with a public interest litigation relating to forced and bonded labour, issued
guidelines for the benefit of workers in stone quarries which included directions to the
Central Government and State Government to ensure that the provisions of the Maternity
Act 1961, the Maternity Benefit (Mines and Circus) rules 1963 and the Mines, Creche
rules 1966, wherever applicable in any particular stone quairy and stone crusher, are
implemented by the mines lessees and the stone crusher owners. Again,in Vikramdeo
Singh Tomar case, inhuman living conditions of female inmates of Care Home at Patna
came up for consideration. The Supreme Court held that the right to live with human
dignity is a fundamental right of an Indian citizen and there is a need for maintaining
establishments for the care of women and children who are castaways of an imperfect
social order and for whom provision must be made for their protection and welfare. It
was held to be incumbent upon the State, when assigning women and children to these
establishments, to provide atleast the minimum conditions ensuring human dignity. The
Hon'ble Supreme Court in Uttarakand Mahila Kalyana Parishad case651, held that
where men and women are doing the same work, there was no reason to pay women less
and to give them less avenues for promotion. In Management of K.E.J Tea and
industries Ltd. case652, Court held that leave for miscarriage can be claimed even if
thewoman worker had not worked for 160 days in the period of 12 months preceeding
the date of miscarriage. In J.P. Singh653, Court held that the principles of equality are
virtually in the natural law and denial of equality would be against the article of equality,
i.e. Article 14 of the constitution.

2.1. Sexual Harassment of Women at Workplace - Sexual harassment at

working place is the most important problem of working women which creates a

650
Vikramdeo Singh Tomar Vs. State of Bihar, AIR 1988 SC 1782
651
Uttarakand Mahila Kalyana Parishad Vs. State of A.P."1993 Supp. (1) SCC 480
652
Management of K.E.J Tea and industries Ltd. Case V. Chief Inspector of Plantations 1998 Lab IC 3394
(Mad ),
653
J.P. Singh v. TELCO (1999) 2L L J (43 ),

244
blockade to women’s equal right to employment and Indian judiciary is very much
concern about the effect of such offence. In Vishaka case654, relying upon - CEDAW and
the country's official commitment to it, in addition to the Constitutional mandate, the
Supreme Court has laid down guidelines to be followed by employees to prevent sexual
harassment of women employees. The guidelines are mandatory till they are replaced by
legislation.

“Gender equality includes protection from sexual harassment and right to work
with dignity, which is a universally recognized basic human right. The common
minimum requirement of this right has received global acceptance. The international
conventions and norms are, therefore, of great significance in the formulation of
guidelines to achieve this purpose.”

The Supreme Court noticed the hazards which a working woman has to face in
the working field as a female worker for her sex and opined that there is an urgent
requirement for an effective alternative mechanism to prevent the sexual harassment at
work place. As there is no law in this regard, S.C for the enforcement of the
constitutional principle of gender equality and to prevent sexual harassment and abuse,
laid down guidelines and norms to be strictly observed at all working places and other
institutons, until a legislation is enacted for that purpose. These guidelines are treated as
law under Article 141 of the Constitution. It imposes duty on the employer to make a
committee in the work places and other institutions to prevent sexual harassment and to
take other necessary steps to be taken in this regard. These guidelines of the S.C. would
not work as a bar against the rights available under the Protection of Human Rights Act
1993. A.K. Chopra655 case is the first case in which the Supreme Court applied the law
laid down in Vishaka’s case and upheld the dismissal of a superior officer of the Delhi
based Apparel Export Promotion Council who was found guilty of sexual harassment of
a subordinate female employee at the place of work on the ground that it violated
her fundamental right guaranteed under Article 21 of the Constitution of India.656

In the words of Dr. Justice A.S. Anand, the Hon'ble Chief Just

654
Vishaka v. State of Rajasthan (1997) 6 SCC 241
655
Apparel Export Co. vs. A.K. Chopra" (AIR 1999 SC 625)
656
Dhruba Desai,”Sexual harassment and Rape laws in India”; source- www.legalserviceindia .com

245
 "There is no gainsaying that each incident of sexual harassment at the place of
work results in violation of the fundamental right to gender equality and the right to life
and liberty - two most precious fundamental rights guaranteed by the Constitution of
India. In our opinion the content of the fundamental rights guaranteed in our Constitution
are of sufficient amplitude to encompass all facets of gender equality including
prevention of sexual harassment and abuse and the courts are under a Constitutional
obligation to protect and preserve those fundamental rights. That sexual harassment of a
female at the place of work is incompatible with the dignity and honour of the female
and needs to be eliminated and that there can be no compromise with such violation
admits of no debate" .And also says "In a case involving charge of sexual harassment or
attempt to sexually molest, the courts are required to examine the broader probabilities of
a case and not gets swayed by insignificant discrepancies or narrow technicalities…..
Such cases are required to be dealt with sensitively. Sympathy in such cases in favour of
the superior officers is wholly misplaced and mercy has no relevance".

657
In in Vishakha case, Supreme Court also held that it is now an accepted rule
of judicial construction that regard must be had to international conventions and norms
for construing domestic law, when there is no inconsistency between them and there is a
void in the domestic law. In the absence of domestic law occupying the field, to
formulate effective measures to check the evil of sexual harassment of working women
at all work places, the contents of international conventions and norms are significant for
the purpose of interpretation of the guarantee of gender equality, right to work with
human dignity in Articles 14, 15, 19 (1) (g) and 21 of the Constitution and the safeguards
against sexual harassment implicit therein. Any international convention not inconsistent
with the fundamental rights and in harmony with it, must be read into these provisions to
enlarge the meaning and content thereof, to promote the object of the constitutional
guarantees. This is implicit from Article 51 and the enabling power of the Parliament to
enact laws for implementing the International Conventions and norms by virtue of
Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution.
658
In a recent case, S.C. in Vimmi Joshi case , our Apex Court once again reiterated its
concurrence with the vishaka judgment. Court came down heavily on the army

657
Supra note 654 at p.245
658
(2009) 2 SCC 217

246
authorities for not constituting a complaints committee. It also expressed its regret on not
having any legislation relating to this.

In spite of all these protective measures, welfare legislations and sensitive

judicial pronouncement, working women are still in some disadvantageous position.
Most of the labour legislations apply to the organized sector only. Thus, women
employed in the unorganized sector do not enjoy the profit of these laws. Legal rules are
not followed properly. The penal provisions are not deterrent enough to prevent the
employer to violate them. In the matter of sexual harassment; Supreme Court’s
guidelines are the only hope to the millions of working women. However, guidelines of
the Court are not maintained strictly in several organized and unorganized sectors. As
per the guidelines of the S.C., a committee is generally made as an eye wash but, no
complain has usually been lodged against the employer or senior officers. In most of the
cases the women in the unorganized sector do not get the equal remuneration with men
even for the same works or similar type of work. Several welfare provisions of the labour
legislations fail to provide safeguards to the workers even in the organized sector.

11. Judicial View of Domestic Violence - The fact that family is the most
physically violent group or institution that the individual is likely to encounter is already
proved by the researcher. The perception that the family is the most loving and
supportive group or institution has blinded us from seeing the violent side of family
life.659 There were no laws to deal with the cases of domestic violence specifically. For
so long time, it is the judiciary who is giving justice to the hapless women. Some of these
violences are covered by IPC under section 494, 497,376 and 498A etc.

Judiciary is always showing extra responsiveness, while dealing with the cases of
violence against women. In a Babulal case660 C.K. Thakker J. Opined that “A socially
sensitized judge is a better armour in cases of crime against women than long clauses of
penal provisions, containing complex exceptions and complicated provisions” In
661
S.R.Batra and Anr. Case, the Hon’ble Supreme Court held that the definition of
“Shared Household” in Section 2(s) of the Protection of Women from Domestic

659
Straus, M.A., “Behind close door: Violence in the American Family”, 1980
660
State of M.P. vs. Babulal 2008 1 SCC, 234,para 29
661
S.R.Batra and Anr. V. Smt Taruna Batra AIR 2007 SC 1118 paras, 28 and 29

247
Violence Act, 2005 is not very happily worded, and appears to be the result of clumsy
drafting. Giving sensible interpretation to the definition of “shared Household”, Supreme
Court opined that the wife is only entitled to claim a right to residence in a shared
household, and a “shared Household” would only mean the house belonging to or taken
on rent by husband, or the house which belongs to the joint family of which the husband
is a member. If the property neither belongs to the husband nor is it a joint family
property of which the husband is a member, it cannot be called “Shared Household”.

In D. Velusamy662 case, Supreme Court decided that women not entitled for
maintenance because unable to prove that she is legally wedded wife. In this case the
victim women D. Patchaimmal marriage could not be proved unable Supreme Court
interpreting Domestic Violence Act 2005 said that domestic relationship includes not
only the relationship of marriage but also a relation say in the “nature of marriage”. The
word nature of marriage has not defined by the act. Hon’ble Supreme Court in
interpreting relationship in the nature of marriage said that
a) The Couple must hold themselves out to society as being akin to spouses.
b) They must be of legal age to marry.
c) They must be otherwise qualified to enter into a legal marriage, including
being unmarried.
d) They must have voluntarily cohabited and held themselves out to the world
as being akin to spouses for a significant period of time.

Supreme Court further held that in our opinion a ‘relationship in the nature of
marriage’ under the 2005 Act must also fulfill the above requirements, and in addition
the parties must have lived together in a ‘shared household’ as defined in Section 2(s) of
the Act. Merely spending weekends together or a one night stand would not make it a
‘domestic relationship’. Although Hon’ble Supreme Court recognised the changing
society and the change is reflected by the enactment of the Protection of Women from
Domestic Violence Act 2005. However, the controversy arises regarding the opinion of
Supreme Court in Para 34. It is said that it is a reflection of “male point of view”.

662
D. Velusamy versus D. Patchaimmal 2011 Cri.L.J 320 (SC)

248
 In Sandhya Manoj Wankhade case.663 the Hon’ble Supreme Court extended the
ambit of Domestic Violence Act 2005 by defining the definition of respondent in Sec.2
(q) of the Domestic Violence Act 2005.Sec.2 (q). “Respondent” means any adult male
person who is, or has been, in a domestic relationship with the aggrieved person and
against whom the aggrieved person has sought any relief under this Act: Provided that an
aggrieved wife or female living in a relationship in the nature of a marriage may also file
a complaint against a relative of the husband or the male partner;” In this case the fact is
that the victim women filled a case against husband, mother-in-law and sister-in-law the
petition before Supreme Court is to delete the names of mother-in-law and sister-in-law
from the respondent in the list because the argument is under Domestic Violence Act
2005 the respondent is a adult male person therefore mother-in-law and sister-in-law
cannot be made party being women. Hon’ble Supreme Court interpreted the act that
which says “complaint may be filled against a relative of a husband or the male partner”.
In this case mother-in-law and sister-in-law are the relative of the husband therefore it is
very much within the meaning of the act.

In Rishi Kumar case664, Punjab and Haryana High Court held that baseless
accusation by the husband about the infidelity of wife and that she was carrying in her
womb a child of someone else amounts to cruelty under section 498-A of IPC. In another
case of Vijay Kumar Sharma case665, Allahabad High Court held that taking away the
child without the consent or knowledge of the child’s mother and particularly without
informing her, amounted to cruelty under clause (a) of Explanation to Section 498-A in
as much as such a conduct of the accused could have driven the mother to commit
suicide or it could cause grave injury or danger to her life, limb or health (whether
physical or mental).

In Milan Kumar Singh & Anr666 holding that there is no bar to directly filing a
complaint with a magistrate, and the use of the word ‘or’ in section 12(1) of the PWDVA
shows that it is the aggrieved person’s choice if she wants to approach the protection
officer first. The Court further explained that the PWDV Act is a social legislation with

663
Sandhya Manoj Wankhade vs. Manoj Bhimrao Wankhade & Ors CR.Appeal No. 271 of 2011
664
Rishi Kumar v State of Haryana 1998 (1) Cr. L.J. 378
665
Vijay Kumar Sharma v. State of Uttar Pradesh 1991 (1) Crimes, 298
666
Milan Kumar Singh & Anr. v. State of U.P. AIR 2006, 237

249
the purpose of helping the aggrieved person, and thus imposing strict procedural
requirements would directly contradict its objective.

In Suresh Khullar667, the High Court held that a husband’s second marriage was
legally valid for the purposes of his wife’s maintenance claim during divorce
proceedings under section 18 of the Hindu Adoptions and Maintenance Act of 1956,
even if the husband’s ex-parte divorce from his first wife had been set aside. The Court
relied on sections2(a), 18, 20, and 26 of the PWDVA, and found that the divorce decree
was in operation on the day the second marriage was solemnized, making the parties’
second marriage legally valid, thus allowing for the wife’s recovery and denying the
husband immunity for defrauding her. husband’s ex-parte divorce from his first wife had
been set aside. The Court relied on sections 2(a), 18, 20, and 26 of the PWDVA, and
found that the divorce decree was in operation on the day the second marriage was
solemnized, making the parties’ second marriage legally valid, thus allowing for the
wife’s recovery and denying the husband immunity for defrauding her.

It is very difficult to give justice in the cases of domestic violence, but, our
judiciary is striving hard to give remedy to the victim of domestic violence. In several
cases it has been illustrated the meaning of the concept like ‘domestic households’,
‘relationship in the nature of marriage’ etc. But, most of the cases accused are released
on the ground of benefit of doubt as it is not very easy to prove the cases of domestic
violence which occurs within the vicinity of home by family members.

PART- III
Judiciary on Personal Law

1. Marriage - “Marriage is a union of two hearts. Success of married life depends

on the edifice built with mutual love, understanding, affection, trust, service and self
sacrifice. Once, this edifice is shaken, happy married life will be shattered into pieces.
The result is one of misery and emotion … where it is impossible to live like husband
and wife, any compulsion to unite them will lead to social evils and disturbance of

667
Suresh Khullar v.Vijay Kumar Khullar AIR 2008 Delhi 1

250
mental peace and disorder in the family life. However rigid social fabric, it is not the
social system but the personal safety of the parties to the wedlock which shall prevail
…”668

Thus it is amply clear from the above statement that union of two sexes is
necessary for the procreation of human races, but primary consideration is the welfare of
the human being. Thus if it is not possible for a male and female to live together as a
husband and wife, law should not compel them to live jointly. It is not good for the
parties to the marriage, family as well as society.

However, in some cases Court has tried to maintain the sanctity of the
relationship. In Saroj Rani,669 Supreme Court held that in the privacy of home and
married life, neither Article 21 nor Article 14 has any place. Conjugal rights are not mere
creatures of the statute. Such a right is inherent in the very institution of marriage itself.
Justice Sabyasachi Mukherjee said that “the object of the restitution decree is to bring
about cohabitation between the estranged parties, i.e. so that they can live together…..”
A man cannot claim restitution as against the second wife if the first wife is living and
marriage is valid.670 In case there is continuous demand of dowry on the part of husband,
this would amount to giving reasonable cause to the wife to withdraw herself from the
society of the husband.671 Leaving home by the husband intending thereby terminating
cohabitation permanently that conduct would amount to desertion on the part of husband.
But, where the husband claims restitution of conjugal rights after a big gap of seven
years, there is justification when the wife does not accompany her672.

In the words of S.C, “it has also to be kept in mind that before granting the prayer
to permanently snap the relationship between parties to the marriage every attempt
should be made to maintain the sanctity of the relationship which is important not only
for the individuals or their children but also for the society. It would be too hazardous to
lay down a general principle of universal application”673

668
Roopa Reddy v.Pravakar Reddy AIR 1994Kant 12
669
Saroj Rani vs Sudarshan kumar AIR1984 SC1562
670
Asha Kumari v.Satish Kumar 1990(1)HLR7
671
Narinder Kumar v.Chander Prabha 1990(1)HLR518
672
G. Ramakrishna Pillai v.j.Vijaya Kumari Amma AIR 1990 Ker 55.
673
Hirachand Srinivas Managaonkar v. Sunanda , AIR 2001 SC 1285

251
 In Santosh Kumari case674 the Court said that even the Court is not competent to
grant permission to solemnnise a second marriage during the subsistence of the first
marriage, even where a request is made by the first wife to permit her husband to marry a
second time. And in Shakuntala Devi,675 it was held that a marriage between persons
within the prohibited degree of relationship or sapinda relationship was not permitted,
unless custom or usages permits such a marriage. In Chakki,676 Kerala High Court held
that it is sufficient if the marriage is solemnized in accordance with the customary rites
and ceremonies of either party. Where a marriage was performed according to the
customary rites and ceremonies of one party which did not include saptapadi, even
though according to the rites of the other party saptapadi was an essential ceremony. In
Bhogadi,677 the policy of law is therefore clear to provide beneficial effects to the
offspring without condoning the contravention and violation of marriage laws. Customs
are slow to, but their misuse must be prevented and curtailed. Surjit Kaur678, where the
Apex Court held that even in case of customary marriage it was necessary that custom,
permitting the second marriage, should not only be pleaded but also the nature of the
ceremonies performed be proved. Evidence in support of the existence of the second
marriage should be brought on the record. Mere proof of the two members of opposite
sexes living together as husband and wife would not by itself confer upon them the status
of husband and wife.

In Dr. Prem Mittal679, the High Court of Rajasthan held that in order to accuse a
person of having committed the offence of bigamy punishable under S. 494 I.P.C., it has
to be specifically proved that he has contracted a second marriage, after performing the
essential ceremonies required for constituting marriage as per rites and tenets of the
religion practiced by the parties concerned or according to the customs prevalent in their
caste, community or society. In Muhamma Latheef, slo K. Sainudheen case680 the High
Court of Kerala held that a woman is entitled to a decree of divorce, if during the
subsistence of a valid marriage the husband had remarried another.

674
Santosh Kumari v.Surjeet Singh AIR1990 H.P.77
675
Shakuntala Devi v. Amarnath AIR 1982 Punj.221
676
Chakki v. Ayyappan 1988 (1) K.L.T.556
677
Bhogadi vs. Vuggina 2006 (5) SCC 532
678
Surjit Kaur v. Garja Singh and Ors AIR 1994 SC 135,
679
Dr. Prem Mittal vs. State of Rajasthan and Others II (2000) DMC 754
680
Muhamma Latheef, slo K. Sainudheen vs. Nishath AIR 2004 KERALA 22

252
 However, in Ashwani Kumar681 case, Supreme Court held that the registration of
marriage falls within the ambit of expression “Vital statistics” as provided in Entry 30
list 3 Section 7 of the constitution of India. Therefore marriage of all citizens of India
belonging to various religions should be made compulsorily registrable in the states
where they are solemnized. Supreme Court in Lata Singh case682 reported that the caste
system is a curse on the nation and needs to be destroyed for the better. Acts of violence
and threats against such inter caste couples are wholly illegal and those who commit
them should be severely punished. Acts of violence and threats against such inter caste
couples are wholly illegal and those who commit them should be severely punished. The
administration and police authorities all over the country were directed by the Supreme
Court to ensure that no inter caste couple is harassed by anyone or subjected to any threat
or act of violence.

Regarding child marriage Court opines that it must be repudiated by the parties to
the marriage after attaining majority. In Mst. Shabnam683, the High Court of Rajasthan
upholding the right of repudiation of a minor's marriage on attaining puberty; held that
unlike, Hindu Law, marriage under the Mohammedan Law is in the nature of a contract.
In a case of a minor who has not attained the age of puberty i.e. 15 years, the contract of
marriage can be entered into by the guardian but minor can always repudiate or ratify the
contract made by her father during minority after the attainment of puberty. The minor
on attaining puberty, may apply to the Court for dissolution of marriage on the ground as
mentioned under Section 2 of the Act (Muslim Marriage) of 1939. The High Court
further held that plaintiff is not promptly required to establish that she was minor at the
time of marriage but she has to further establish that marriage has not been
consummated. Kerala High Court in Kalluvalappil684observed that even after there was
any cohabitation before she had attained puberty; it would not affect her right to
repudiate the marriage, which right she gets only after attaining puberty. The
cohabitation by a minor girl would not be sufficient to put an end to her right to repudiate
the marriage after attaining puberty. A husband cannot be allowed to contend that there
was consummation of marriage even before the wife had attained puberty. The consent to
intercourse by a girl who had not attained puberty is not of any consequence. But, the

681
Seema V. Ashwani Kumar AIR 2006 SC 1158
682
Lata Singh vs State of UP 2006(6) SC,173
683
Mst. Shabnam vs. Mohd. Shafiq AIR2004 RAJASTHAN 303
684
Kalluvalappil v. Parayangat Voorankutttj reported in (1988) 24 1. J. Reports 24.361 at pp. 24

253
position would be different if the marriage has been consummated after she had attained
puberty.

However, in the Muzaffar Ali Sajjad685 case Supreme Court held that “The Child
Marriage Restraint Act, 1929 was enacted with a view to prevent child marriages,
namely, a marriage to which either of the contracting parties is under a specified age."
The Supreme Court observed that question of increasing the minimum age of marriage
has been considered in the present context when there is an urgent need to check the
growth of population in the country. Such increase of the minimum age of marriage will
result in lowering the total fertility rate on account of latter span of married life. It will
also result in more responsible parenthood and in better health of the mother and child.

The Supreme Court also observed that further to be seen is as to whom this law is
applicable and whether the Muslims have got any exemption. Section 1 (2) of the Act
extends to the whole of India (except the State of Jammu and Kashmir) and applies also
to all citizens of India. It held that this means that Muslims are not exempted from the
Act. If the marriage of a Muslim girl is performed during her minority, the marriage
cannot be void but the persons who participated in the marriage cannot be immuned from
the legal punishment, which is provided under Sections 4, 5 and 6 of the Child Marriage
Restraint Act.

2. Divorce- As I have already said maintaining the sacredness of relationship is the

main motto of judiciary, but whenever it is not possible for the parties to the marriage to
accompany each other with love and peace, judiciary come to rescue them from such
unhealthy relationship by granting divorce. Thus, in Fazlenbi case686 Justice Krishna
Iyer speaking before the Supreme Court quoted C.J. Behard Islam an elaborate judgment
replete with quotes from the Holy Quran has exposed the error of early English authors
and judges who dealt with Talaq in Muslim law as good even if pronounced at whim or
tantrum by the husband; in the absence of serious reasons, no man can justify a divorce
either in the eye of religion or the law. If he abandons his wife or puts her away in simple

685
Muzaffar Ali Sajjad and Others vs. State of Andhra Pradesh (2004) 4 SCC 764
686
Fazlenbi vs. K. Khader vat AIR 1980 SC 1730

254
caprice, he draws upon himself the divine anger, for the curse of God, said the Prophet
rests on him who repudiates his wife capriciously.

In Venkataramanappa case,687 the Apex Court held that "the prosecution

evidence in the criminal complaint may have fallen short of those standards but that does
not mean that the State was in anyway debarred from invoking Rule 28 of the Karnataka
Civil Service Rules, which forbids a government servant to marry a second time without
the permission of the Government. But, here, the respondent being a Hindu, could never
have been granted permission by the Government to marry a second time because of his
personal law forbidding such marriage: It was thus beyond the ken of the Tribunal to
have scuttled the departmental proceedings against the respondent on the footing that
such question of bigamy should normally not be taken up for decision in departmental
enquiries, as the decisions of competent courts tending to be decisions in rem would
stand at the highest pedestal. There was a clear fallacy in such view because for purposes
of Rule 28, such strict standards, as would warrant a conviction for bigamy under
Section 494 IPC, may not, to begin with, be necessary".

The High Court referred to the Supreme Court in Lachman Utamchand

Kirpalani688, while discussing desertion has observed: "For the offence of desertion, so
far as the deserting spouse is concerned, two essential conditions must be there, (1) the
factum of separation, and (2) the intention to bring cohabitation permanently to an end
(animus deserendi). Similarly, two elements are essential so far as the deserted spouse is
concerned: (1) absence of consent, and (2) absence of conduct giving reasonable cause to
the spouse leaving the matrimonial home to form the necessary intention aforesaid.
Desertion is a matter of inference to be drawn from the facts and circumstances of each
case. If, in fact, there has been a separation, the essential question always is whether that
act could be attributable to an animus deserendi. The offence of desertion commences
when the act of separation and the animus deserendi coexist."

In Muhamma Latheef, slo K. Sainudheen case,689 the High Court of Kerala held
that a woman is entitled to a decree of divorce, if during the subsistence of a valid

687
Kamataka and Another VS. T. Venkataramanappa 1996 (6) SCC 455
688
Lachman Utamchand Kirpalani Vs. Meena alia Mota (AIR 1964 SC 40),
689
Muthamma Latheef slo K. Sainudheen v.Nishath AIR 2002 Delhi 307

255
marriage the husband had remarried another. Necessarily, that will be a mental cruelty
towards the first wife. In Dr. Kiran Robinson case690The Delhi High Court held so far as
is concerned in the ordinary sense it is sexual intercourse of a married person with one of
the opposite sex other than the husband or wife, as the case may be. Since it is a crime of
darkness and secrecy, the direct proof of commission of sexual intercourse may not be
possible. Sometimes such direct proof creates suspicion. Admittedly it can be inferred
from circumstances. When a man or woman stays at a hotel with another man or woman
who is not his wife or husband, adultery may be inferred as the maxim goes that they do
not sing prayers there. Similarly indecent familiarities also raise the inference of
adultery.

In Subramani case691 the Apex Court following well-settled earlier principles of

law, held that since there was no custom prevalent in the community to which the parties
belonged for dissolution of marriage by mutual consent, the alleged deed of dissolution
marriage could not be executed.

2.1. Divorce by Irretrievable Break Down of Marriage - Though we have

recognized divorce but still marriage is a sacrament to us especially to Hindus. The
existing divorce laws of all communities recognized three kinds of system, which are
available on the basis of fault grounds, break down theory and the mutual consent theory.
Now another ground of divorce is going to recognize by our legislature i.e. Irretrievable
Break Down of Marriage. Two different high court decisions in Yudhister Singh case692,
Kakali Dass case693 and Supreme Court’s decision in Sham Sunder case694 give a clear
view of the judiciary that the ground of irretrievable break down of marriage should be
rarely used.

However, the some recent decisions of the Supreme Court of India indicate that
the Apex Court has recommended that “irretrievable break down of marriage” should be
added as a ground of divorce on the statute book. It is not uncommon for the Apex Court

690
K. Robinson v.Ajeet Malcom Robinson and Others AIR 2003 DELHI 44
691
Subramani Vs. M. Chandralekha Judgments Today 2005 (11) SC 562
692
Yudhister Singh Vs. Sarita 2004 (1) Hindu Law Reporter 228
693
Kakali Dass Vs. Dr. Asish Kumar 2004 (1) Hindu Law Reporter, 448
694
Sham Sunder Vs. Sushma Judgments Today 2004 (8) SC 166

256
to apply this principle in dissolving marriages as was done in Durga Prasanna case695.
The Supreme Court in Naveen Kohli case696 has recommended to the Union of India to
seriously consider bringing an amendment in the Hindu Marriage Act to incorporate
irretrievable break down of marriage as a ground for divorce.

In Amna Khatoon case,697 the Jharkhand High Court held that when an
intolerable situation has been reached and partners are living with hostility for a
considerable number of years, it is legitimate to draw an inference that the marriage has
broken down in reality and law should recognise it and try to end the relationship. Islam
concedes the grounds of dissolution of the marriage at the instance of the wife and the
statute itself recognises it and preserves it as a saving provision under Section 2(ix) of
the Act, when it enacted" any other ground which is recognised as valid for the
dissolution of marriages under the Muslim Law".

The instant case is not one in which there is some instances of quarrel, as often
take place in a family. The High Court held that it is manifest that the marriage between
the parties has irretrievably broken down and on this score too, a wife titled to the
dissolution of marriage, which is covered by the residuary ground as envisaged in
Section 2(ix) of the Act. The aforesaid view is also reflected in a decision of the Apex
Court in the case of Chetan Das.698

The Supreme Court held that matrimonial matters are of delicate human and
emotional relationship. It demands mutual trust, regard, respect, love and affection with
sufficient play for reasonable adjustment with the spouse. The relationship has to
conform to the social norms as well The matrimonial conduct has now come to be
governed by Statue framed, keeping in view such norms and changed social order. It is
sought to be controlled in the interest of the individuals as well as in broader perspective,
for regulating matrimonial norms for making of a well knit, healthy and not a disturbed
and porous society. Institution of marriage occupies an important place and role to play
in the society in general. Therefore, it would not be appropriate to apply any submission
of "irretrievably broken marriage" as a straightjacket formula for grant of relief of

695
Durga Prasanna Vs. Arundhati Judgments Today 2005 (7) SC 596
696
Naveen Kohli Vs. Neelu Kohli Judgments Today 2006 (3) SC 491
697
Amna Khatoon vs. Md. Kashim Ansari AIR 2001 JHARKHAND 28
698
Chetan Das v. Kamla Devi AIR 2001 SC 1709

257
divorce. In the Sudhir Singhal case699 submission was made by the counsel appearing
for the husband that the marriage had irretrievable broken down. The High Court held
that the same could not be a ground for allowing the dissolution of marriage. In this
connection, it may be appropriate to state the irretrievable breakdown of marriage is not
a ground recognized by law for grant of decree of divorce. The Supreme Court, of
course, by exercising the powers under Article 142 of the Constitution of India granted
such a decree for irretrievable breakdown of marriage in the case of, V. Bhagat700. The
said power is however, not available to the High Court who is bound by the statutory
provisions made in that regard. In this connection, reference was made to the decision of
the Gujarat High Court in Anil Kumar case701, and the decision of the Gauhati High
Court in Gouri Shankar Chakravarty case702, Reference was also made to a Division
Bench decision of Delhi High Court in Smt. Nitu Alias Asha case703

The High Court dismissed the appeal with the opinion that the husband has failed
to make out any ground for dissolution of marriage. In Gajendra case704 the High Court
held that the parties are admittedly living separately for a long period of about 17 years.
Their marriage appears to have irretrievable broken, with no chance of reunion or
resumption of their marital relations. The marriage between the parties therefore appears
to be beyond repair. This would also constitute and justify grant of decree for divorce, as
705
prayed by the petitioner. Referring to Smt Saroj Rani case, where it has been laid
down that the right of the husband or the wife to the society of the other spouse is not
merely a creature of the statute. Such a right is inherent in the very institution of
marriage itself. The essence of marriage lies in sharing of common life, a sharing of all
the happiness that life has to offer and all the misery that has to be faced in life, an
experience of the joy that comes from enjoying, in common, things of the matter and of
the spirit and from showering love and affection of one's offspring. Living apart is a
symbol indicating the negation of such sharing. It is indicative of a disruption of the
essence of marriage -"breakdown" and if it continues for a fairly long period, it would
indicate destruction of the essence of marriage-"irretrievable breakdown". Similarly, in

699
Sudhir Singhal vs Neeta Singhal AIR 2001 DELHI 116
700
See Supra note 639 at p.239
701
Anil Kumar Vs. Sunita 1(1998) DMC 345
702
Gouri Shankar Chakravarty Vs. Smt. Basana Roy AIR 1999 Gauhati 48.
703
, Smt. Nitu alias, Asha Vs. Krishan Lal AIR 1990 Delhi
704
Gajendra VS. Smt. Madhu Mati AIR 2001 M P 299
705
Smt Saroj Rani vs. Sudarshan Kumar Chadha (1984) 4 SCC 90

258
Romesh Chander706case the Supreme Court considered it just and proper to grant a
decree for divorce in a case where there was irretrievable breakdown and marriage was
held to be dead.

In Mohinuddin Middya case707, the High Court of Calcutta held that a Muslim
marriage is no doubt a contract but it does not empower the Muslim husband to divorce
his wife whenever he likes and the wife cannot be treated like a chattel. In this
connection the Hon'ble Supreme Court relied upon and agreed with the view in Jiauddin
Ahmed v. Anwara Begum, reported in 1981 (1) Gauhati LR 358 and Rukia Khatun v.
Abdul Khalique Laskar, 1981(1) Gauhati LR 375. In Jiauddin Ahmed's case (supra) it
was observed that:

"The correct law of talaq as ordained by the Holy Quran is that talaq must be for
a reasonable cause and be preceded by attempts at reconciliation between the
husband and the wife by two arbiters-one from wife's family and the other from
the husband's; if the attempts fail, talaq may be effected (para 13)".

2.2. Conversion - In Lily Thomas case708 the Supreme Court held that change of
religion does not dissolve the marriage performed under the Hindu Marriage Act
between two Hindus. Apostasy does not bring to an end the civil obligations or the
matrimonial bond, but apostasy is a ground for divorce under Section 13 as also a ground
for judicial separation under Section 10 of the Hindu Marriage Act. Hindu Law does not
recognise bigamy. As seen above, the Hindu Marriage Act, 1955 provides for
"Monogamy". A second marriage, during the life-time of the spouse, would be void
under Sections 11 and 17, being an offence. Thus, conversion of Hindu to Islam with a
view to remarry during the subsistence of the earlier cannot be permitted to take
advantage of his exploitation.

2.3. Custom - In Subramani and Others709 the Supreme Court held that it is well
established by long chain of authorities that prevalence of customary divorce in the

706
Romesh Chander VS. Smt. Savitri AIR 1995 SC 851
707
Mohinuddin Middya vs. State of West Bengal and Another MANU/WB/0157/2004
708
Lily Thomas v.Union of India and others( 2000 ) 6 SCC 224
709
Subramani and others v.Chandralekha 2004( 9) SCALE 599

259
community to which parties belong, contrary to general law of divorce must be
specifically pleaded and established by the person propounding such custom. The High
Court came to the conclusion that the appellants failed to either plead the existence of a
custom in their community to dissolve the marriage by mutual consent or to prove the
same by leading cogent evidence. The Court in Yamanaji H. Jadhav710case, has held
that custom has to be specifically pleaded and established by leading cogent evidence by
the person propounding such custom. In ]asbir Singh711, the High Court held in view of
the special provision in the Hindu Marriage Act, it would be clear that if there is a
custom recognizing divorce amongst Hindus, the same shall be protected even after the
commencement of Hindu marriage Act. The Court referred to Gurdit Singh712 where it
was held by the Supreme Court that a custom exists among the Hindu jats of the Jalandar
District which permits a valid divorce by a husband of his wife which dissolves the
marriage. It was held that on the dissolution of such a marriage the divorced wife can
enter into a valid marriage with a second husband in the lifetime of the first.

2.4. Fraud - In Benny Mathew713case the High Court of Kerala held that it has been
held that concealment of vasectomy operation from the wife is concealment of a material
fact in obtaining consent of the wife for the marriage by playing deliberate fraud. It is
also held that non-disclosure of the insanity of self or the father and brother of one of the
parties to the marriage will amount to fraud in obtaining consent for marriage. Non-
disclosure of a fact which is fundamental and material to the marriage to the other spouse
will amount to playing fraud in obtaining consent for the marriage. But non-disclosure of
some fact, which will not affect the marital life of the parties, cannot be considered as
fraud within the ambit of fraud under the proviso to S. 19 of the Indian Divorce Act.

2.5. Limitation - In Supriya Chakraborty714case, the High Court referred to the

Supreme Court decision in AIR 1989 SC 1477 and held that it can, thus, be
unhesitatingly cited as an authority for the proposition that the provisions of the
Limitation Act will not apply to any suit or any proceeding under any marriage law. In

710
Yamanaji H. Jadhav v. Nirmala, 2002 (2) SCC 637
711
In Jasbir Singh vs. Inderjeet Kaur AIR 2003 PUNJAB & HARYANA 317
712
Gurdit Singh v. Mst. Angrez Kaur, AIR 1968 SC 142,
713
Benny Mathew VS. Philomena1(2002) DMC 541
714
Supriya Chakraborty (Nee Paramanik) vs. Champak Kumar Chakraborty AIR 2000 CALCUTTA 76

260
other words, the provisions of the Limitation Act cannot apply to the instant suit or
proceeding under the Special Marriage Act.

Thus, considering the question of delay from all angles, it must be held that the
delay in specifically claiming the relief under S. 25(i) of the Special Marriage Act cannot
be considered to be unreasonable and unnecessary at the stage of allowing the
amendment without deciding the question on evidence during the trial.

No Entitlement to reservation on the basis of marriage - In Sandhya

Thakur715 case, the appellant was born a Maharashtrian Brahmin. She married one
Naresh Kumar who is a Namdev by caste. In the election to the Municipal Corporation
of Gwalior, the appellant filed her nomination for election for the post of a Corporator
for Ward No. 50, a ward reserved for backward communities. The appellant was declared
elected. The defeated candidate who is the respondent herein challenged the election of
the appellant in an Election Petition.

The Supreme Court held that in light of the decisions in Valsamma Paul716 case,
which were heard along with this appeal, it must be held that the appellant, who by birth
did not belong to a backward class or community, would not be entitled to contest a seat
reserved for a backward class or community, merely on the basis of her marriage to a
male of that community.

To regulate the law relating to the marriage and divorce of all the communities,
Judiciary is striving hard towards equality. It has repeatedly emphasizes on the needs of
the uniform civil code to make the laws of all communities equal. The Court has also
directed the states to make the registration of marriage compulsory. It has also said that
in case of customary marriage, parties must have to perform customary ceremonies. In
the cases of divorce also, the Court recognized irretrievable breakdown of marriage
under some strict circumstances. There are many occasions when judiciary has tried to
protect the interest of the women and thus helping the women to achieve their goal.

715
Sandhya Thakur Vs. Vimla Devi Kushwaha, (2005) 2 SCC 731,
716
Valsamma Paul vs. Cochin University and Others and Civil Appeal Nos. 4413-14 of 2003(refer to M69

261
3. Maintenance - The maintenance is awarded to the wife, children and other
dependants so that they should not be thrown on the street after separation of the husband
and wife and compelled to adopt a disreputable way of life. Thus the provision is made
to protect the interest of the society. However, for the purposes of this chapter, ‘wife’
includes a woman, who has been divorced by or has obtained divorced from her husband
and has not remarried.717 The suitable protection has also been given to the women as
regards the proof of the income. Law does not impose any duty on women to prove the
income of her husband, on the basis of which maintenance amount is fixed.718 In
Mangatmul case, 719 the Supreme Court said "Maintenance as we see it necessarily must
encompass a provision for residence. Maintenance is given so that the lady can live in
the manner more or less to which she was accustomed. The concept of maintenance
must, therefore, include provision for food and clothing and the like, and take into
account the basic need of a roof over the head. Provision for residence may be made
either by giving a lump sum in money or property in lieu thereof'. The right to permanent
alimony is a statutory right and as such it cannot be abridged or taken away by any
contract of the parties to that effect.720 In Rohtash Singh case,721 the Hon.ble Supreme
Court held that a woman has two distinct rights for maintenance. As a wife, she is
entitled to maintenance unless she suffers from any of the disabilities indicated in
Section 125(4) of the Criminal Procedure Code. In another capacity namely, as a
divorced woman she is again entitled to claim maintenance from the person of whom she
was once the wife. A woman after divorce becomes a destitute. If she cannot maintain
herself or remains unmarried, the man who was once her husband continues to be under
a statutory duty and obligation to provide maintenance to her.

In B. G. Shivananjappa case,722 it is held that in the peculiar circumstances of the

case, the bar under Section 125(3) cannot be applied and the High Court has erred in
reversing the order of Sessions Judge. It must be borne in mind that Section 125 Cr. P.C.
is a measure of social legislation and it has to be construed liberally for the welfare and
benefit of the wife and daughter. It is unreasonable to insist of filing successive

717
Rohtas singh v.Smt.Romendri AIR2000(3) SC180
718
Shivani Chattopadhyaya v.siddarth Chattapadhyaya 2000 SC952
719
Mangatmul V. Punni Devi (1995) (5) SCALE 1998
720
Manjit Singh v. Savita Kirna, AIR1983P&H 281. Kirtikant D. Vadodaria v. State of Gujarat and
another, (1996) 4 SCC 479
721
Rohtash Singh Vs. Ramendri. (2000(3) SCC 180),
722
Shantha v. B. G. Shivananjappa AIR 2005 S.C.2410

262
applications when the liability to pay the maintenance as per the order passed under
Section 125(1) is a continuing liability.

In Danial Latifi case,723 while upholding the validity of the Act, we may sum up
our conclusions: Court holds that – (1) A Muslim husband is liable to make reasonable
and fair provision for the future of the divorced wife which obviously includes her
maintenance as well. Such a reasonable and fair provision extending beyond the iddat
period must be made by the husband within the iddat period in terms of Section 3(1)(a)
of the Act.(2) Liability of Muslim husband to his divorced wife arising under Section
3(1)(a) of the Act to pay maintenance is not confined to iddat period.(3) A divorced
Muslim woman who has not remarried and who is not able to maintain herself after iddat
period can proceed as provided under Section 4 of the Act against her relatives who are
liable to maintain her in proportion to the properties which they inherit on her death
according to Muslim law from such divorced woman including her children and parents.
If any of the relatives being unable to pay maintenance, the Magistrate may direct the
State Wakf Board established under the Act to pay such maintenance. In Brishnupriya
Sutradhar case,724 Guahati High Court supported the wife’s claim to maintenance under
section 125 Cr. P. C. Wife was living separately with her minor child. She had no
independent income and husband had refused to take back her in matrimonial home. The
Court held that husband is liable to pay maintenance to wife for her survival and
livelihood @ Rs. 2000/ per month. In T.K. Surendra725case, Kerala High Court said that
expression wife includes woman, whose marriage has been annulled under section 12 of
Hindu Marriage Act, is entitled to claim maintenance under section 125 of Cr. P.C.

Actually most of the women are housewife and busy with their household duties
and child rearing, thus, don’t have any source of income and as a result dependent on
their husband. But, when for any reason marriage knot breaks up, they fall in a helpless
situation. Our Judiciary on several occasion said that it must be borne in mind that
Section 125 Cr. P.C. is a measure of social legislation and it has to be construed liberally
for the welfare and benefit of the wife and children. So this is the principle of judiciary.
Even in the case of Mulim women, it has revolutionized the concept of husband’s

723
Danial Latifi v. Union of India AIR 2001 SC 3958 "
724
Brishnupriya Sutradhar v.Nipendra Sutradhar 2012 Cr.L.J 1796
725
T.K. Surendra v P. Najima Bindu & Another 2012 Cri.L.J 1960

263
liability to maintain wife. The role played by the Judiciary is very significant in this
matter.

4. Judiciary on Guardianship and Adoption - There is no uniform law

in the matter of adoption and guardianship of a child also. Thus, it is governed by
personal law. The question of child custody comes when the parents of a minor child
gets separated by divorce or dies. For the better protection of the child and to fulfill
his/her basic necessities law comes to deal with the matter. Under all personal laws
father is considered as the natural guardian and the mother has only the right of a
custodian. Only in the absence of father, the mother can be recognized as the guardian.
And if the father is not competent to act as the guardian of the child, the mother is
considered as the natural guardian of a child. But, in case of an illegitimate child mother
is the sole guardian. However, today, several international conventions and child rights
movements, has also been giving emphasis on the recognition of the identity of the child
as an individual. Thus the Court decided the custody of the child on the basis of the two
factors i.e. welfare approach and wishes expressed by a child.

The Courts have often taken an approach of an activist while deciding the cases
726
of custody of a child. In the case of Gaurav Jain case, the Supreme Court answered
the question as to what procedure is effectual to prevent exploitation of sex workers and
to bring them and their children into the social mainstream by giving care, protection and
rehabilitation. In Geeta Hariharan727 case Court asserted the predominance of the
728
child’s welfare in all considerations. He considered the precedent of Gajre case in
which, although the father was alive, he was not taking any interest in the affairs of the
child. In that case the mother was ruled to be the natural guardian of her minor daughter.
He set out that the Hindu law and the Act held that the father is the natural guardian and
after him the mother but in the above case, the Court held the opposite. The judgment in
Gajre case considered that “… a rigid insistence of strict statutory interpretation may not
be conducive for the growth of the child, and welfare being the predominant criteria; it
would be a plain exercise of judicial power of interpreting the law so as to be otherwise
conducive to a fuller and better development and growth of the child.” Justice Banerjee

726
See Supra note 594 at p228
727
Geeta Hariharan & Anor. Vs. Reserve Bank of India (1999) 2 SCC 228
728
Gajre v. Pathankhan (1970) 2 SCC 717

264
noted that the judge allowed the mother to be the natural guardian “… but without
expression of any opinion as regards the true and correct interpretation of the word
‘after’ or deciding the issue as to the constitutionality of the provision as contained in
Section 6(a) of the Act of 1956.

729
In Pannilal case, section 19(b) should be construed in a similar manner. “He
felt strongly that a long established law should not easily be set aside; that a key point
was interpretation of the word “after”; and that “… the word did not necessarily mean
after the death of the father, on the contrary, it [means] ‘in the absence of be it temporary
or otherwise or total apathy of the father towards the child or even inability of the father
by reason of ailment or otherwise.” He concluded that ascribing the literal meaning to the
word ‘after’ cannot arise having due regard to the object of the Act and the constitutional
guarantee of gender equality, since any other interpretation would render the statute void
which ought to be avoided. Subsequently, he dismissed the petition regarding the
constitutionality of the Act but directed the Reserve Bank to formulate appropriate
methodology in the light of his observations. He also instructed the District Court, Delhi
to take account of his comments when considering custody and guardianship of the
minor child730

In Smt. Chandan Bilasini by L.Rs vs. Allabuddin Khan731 the Court held that for
valid adoption performance of the ceremony of giving and taking is important. A Hindu
shall not adopt except with consent of his wife unless the wife has completely and finally
renounced the world or has ceased to be a Hindu or has been declared by a Court of
competent jurisdiction to be of unsound mind. If a person has more than one wife living
at the time of adoption, the consent of all the wives is necessary.732 Mohammed
Allahabad Khan case733 it was held that there is nothing in the Mohammedan Law
similar to adoption as recognized in the Hindu System. Acknowledgement of paternity
under Muslim Law is the nearest approach to adoption. The material difference between
the two can be stated that in adoption, the adoptee is the known son of another person,
while one of the essentials of acknowledgement is that the acknowledgee must not be

729
Pannilal v Rajinder Singh & Anor (1993) 4 SCC 38
730
http://www.equalrightstrust.org
731
Smt. Chandan Bilasini by L.Rs vs. Allabuddin Khan
732
Kasibai vs Parvatibai 1995(2) AIHLR (SC) 712
733
Mohammed Allahabad Khan v. Mohammad Ismail (1888) ILR 10 All 289

265
known son of another. However an adoption can take place from an orphanage by
obtaining permission from the court under Guardians and wards act.

Judiciary is though trying to give justice to the people but, in absence of any
uniform law in these matters, the Court is confined within a specified limit. There are no
specific law relating to adoption for Muslim and Christian. The law relating to
guardianship is also age-old, so Govt. should enact a new law or amend the old law or
make a uniform law for all communities.

5. Right to Property - It is now pleaded that Property is one of the important gift
or assets which can develop the personality of a human being by making him/her
independent. It is also said that it can work as a factor to minimize the violence against
women.734 In Pratap Singh735 case, the Hon'ble Supreme Court repelled the challenge
made to Sec. 14(1) of the Hindu Succession Act, which provided that any property
possessed h" a female Hindu, whether acquired before or after the commencement of the
Act, shall be held by her as a full owner and not as a Limited Owner. The challenge to
the validity of Sec. 14 (1) was on the ground that the said section favoured Hindu
women, on the ground of sex, to the prejudice of male members of the Hindu
community. The Supreme Court held that Sec. 14(1) was enacted to remedy to some
extent the plight of Hindu women and that there was hardly any justification for the men
belonging to the Hindu' Community to raise any objection to the beneficent provisions
contained in Sec. 14 (1) on the ground of hostile discrimination, since the 'said section
was protected by the express provisions contained in clause (3) of Article 15 of the
Constitution' and was a special provision enacted for the benefit of Hindu women. The
ambit and scope of Section 14( 1) of the Hindu Succession Act was considered by the
Supreme Court and its beneficial effect in further empowering women was taken due
note of in Jagannathan Pillai736, Thotasesha Rathamma 737
and Velamuri Venkata
738
Siva Prasad . Judiciary is repeatedly giving emphasis on the importance of gender
equality in respect of property rights of women in its verdict and directed to make
legislation in this regard. The Andhra Pradesh Legislature adopted a Bill on 24th

734
See Supra note 526 at p.208
735
Pratap Singh Vs. Union of India AIR 1985 SC
736
Jagannathan Pillai Vs. Kunjithapadam Pillai AIR 1987 SC 1493
737
Thotasesha Rathamma Vs. 'Thota Manikyamma 1991 (4) SCC 312,
738
Velamuri Venkata Siva Prasad Vs. KothuriVenkateswarlu 2000 (2) SCC 139

266
September,1985 to confer equal right to property on Hindu women. A new Chapter II-A
was inserted into the Hindu Succession Act consisting of Sections 29-A 29-8 and 29-C.
Section 29-A stipulates that in a joint family governed by the Mitakshara law the
daughter shall by birth become a coparcener in her own right and have the same rights in
the coparcenary property as she would have had if she had been a son. It makes the
daughter’s right to ancestral property direct and absolute. Section 29-B provides for the
devolution of such interest by survivorship. Section 29-C gives preferential right to
acquire property in certain cases.

The circular of the Government of India, which entitled married daughter of a

retiring official to be eligible to obtain Railway accommodation only if her retiring father
had no son, came up for consideration before the Hon'ble Supreme Court in Savitha
case739, the Hon'ble Supreme Court held that the said circular to be wholly unfair, gender
biased and unreasonable.

The Supreme Court paved 'way for other courts to follow it as a precedent while
deciding cases of women's right to property. In Kotturu Swami case, a Hindu widow who
was wrongfully dispossessed filed a suit of possession in March 1956 before the passing
of the Hindu Succession Act 1956. The Court said that on coming into force of the said
Act, she must be regarded as a female Hindu who possessed the property for the
purposes of section 14 and so she became a full owner of it. The Supreme Court has
almost flexed quite far to interpret the section 14 as also the Hindu female's other
situational status to her advantage. If not for such a liberal interpretation most of the
widows would have been deprived of their right to inheritance of what is there due. The
famous Mary Roy's case740, where the Supreme Court held that the Indian Succession
Act will apply to the Christians of Kerala after the integration of states. Christian
women, the Court said, cannot be given a lesser share in inheritance under the old state
law.

However, the judgment of the Supreme Court in Maslamani Mudaliar case,

changes the life of widow. Now, a widow is entitled to full ownership of property741

739
Savitha Vs. Union of India, 1996 (2) SCC 2808
740
Mary Roy Vs. State of Kerala, AIR 1986 SC 1011; (1986) (2) SCC 2098
741
See Supra note 526 at p.208

267
 Hindu Marriage Act 1955(Section-24) said remarriage by Hindu widow affects to
succeed late husband's property well settled. Succession never remains in abeyance of
widows right to succeed does not stand forfeited on her remarriage at a later date.
Bombay High Court in Babu Rao Parashuram Ukharde & Ors.742and LRs Be Ors case
743
said that women, Unmarried daughters and granddaughters capable of owning land.

The property right of women is an important factor in the life of the women. But,
equal right of women with men in this regard is not recognized. However, under Hindu
law, the position of women is much better. It is the Judiciary, which is expanding the
right of women by the proper explanation of the statutory provision. Judiciary is
repeatedly giving emphasis on the importance of gender equality in respect of property
rights of women in its verdict and directed the Govt. to make legislation in this regard. It
has extended the scope of married daughter’s property right in the father’s property and
widow’s right in the deceased husband’s property.

Thus, the position of women under personal law is not very good. Our Judiciary
is striving hard towards achieving the goals of equality, but in absence of specific
legislation in this regard, all effort of Judiciary is going in vain. In many cases, Judiciary
repeatedly directed the Govt. to make uniform civil code, but till now no effort has been
seen on the part of the Govt. If the laws of various communities are not uniform, the
position of women can’t be improved.

However, after having a thread bare analysis of the role of Judiciary in protecting
the women on the strength of the existing laws, we can convince ourselves that in order
to keep the prestige and credibility of the Judiciary, some mechanism should be invented.

Judiciary considered to be the last resort of the common man, should not be
subjected to any allegations. The credibility of the Judiciary is based on the high
expectation and trust of the people. ‘Court of Justice’ is called as ‘temple of Justice.’
Temple denotes sanctity purity and reality. So in the Court, these things should be
observed while administering Justice. Judges are the guardians of law and protector of
high ideals enshrined in the constitution.

742
Babu Rao Parashuram Ukharde & Ors. . AppellantsVs.Smt. Laxmibai & Ors. II (1995) DMC 326
743
LRs Be Ors V Director of Land Reforms AIR SC 1005

268
 The Judicial activism is helpful and good for the institutional growth of
democracy. The Indian Judiciary is now in a position to depict the shadows in law. It has
upheld the rule of law, preserved our constitutional values and applied these rights for
the development of the vulnerable section of the society like women.

In this way Indian Judiciary has been extending the horizons of equality to the
Indian Women. But the desired results can be achieved only when women themselves
support their cause and men change their attitude towards Women.

269
AN EMPIRICAL SURVEY OVER
DOWRY RELATED OFFENCES

CHAPTER – 5

270
 Chapter – 5
AN EMPIRICAL SURVEY OVER DOWRY
RELATED OFFENCES

Among all offences against women dowry death is the most heinous as it shatters
the very institution of marriage, upon which the entire superstructure of a society is
based. The concept of marriage has now been changed. It has become a market for
economic exchange. It is such a delicate issue that many Scholars have studied the
Problem with utmost sincerity. There work revealed that several factors work behind the
causing of dowry deaths. Thus we have failed to draw any definite conclusion regarding
what we should do?

Previous survey- After having gone through the many reports744 of violence
against women in West Bengal, the Researcher has summarized the following
observations. Overall, one-third of women aged about 15-49 years have experienced
physical violence and about 1 in 10 has experienced sexual violence. In total, 35 %
women have experienced physical or sexual violence both. This figure translates into
millions of women who have suffered, and continue to suffer, at the hands of husbands
and other family members.

In case of Married women it is revealed that violence by the husbands against

wives is extensive. Married women are mor e likely to experience physical or sexual
violence by husbands than by anyone else. Nearly in 37% cases married women have
experienced some form of physical or sexual violence by their husband. Acts of physical
violence by the husband against his wife include: pushing, shaking, throwing something
at her, slapping, arm twisting, hair pulling, punching, kicking, dragging, beating, trying
to choke or burn her on purpose, and threatening her or attacking her with a weapon.
Slapping is the most common act of physical violence by husbands. 30% of married
women said that their husband has slapped them; 15 % said that their husband has pulled
their hair or twisted their arms; and 14 percent have been pushed, shaken, or had

744
Observation made on the basis of the NFHS report, SCRB report, SWC’s analysis and other research
report.

271
something thrown at them One in 10 married women have experienced sexual violence
at the hands of their husband. About 49% women from the poorest households face
violence by the husband and in-laws. Violence is much higher among these women in
comparison with the wealthier people i.e.18% only. Women with lower education are
mostly the victims of violence. About 46 % of married women with no education have
experienced spousal violence. The date also showed that in 47% cases of violence
against wives, husbands have no education.12% victims married women have education
up to intermediate level. Where both the spouses have either school education or
education up to intermediate level, spousal violence is lower i.e. 23%. But it is higher
where the husbands have more educational qualification than their wives. 16 %married
women have experienced emotional violence by their husband. Only 1% married women
have ever initiated violence against their husband. Acts of emotional violence by the
husband against the wife include: saying or doing something to humiliate her in front of
others, threatening to hurt or harm her or someone close to her, or insulting her or
making her feel bad about herself.

Nearly 72% cases cause of violence is demand for dowry. In 6% cases violence is
caused due to extra marital relationship and 18% cases harassment takes place due to
addiction to bad vices. Only one in four abused women have ever sought help to try to
end the violence they have experienced. Two out of three women have never sought
help, but have also never told anyone about the violence. Abused women most often seek
help from their families. Few abused women seek help from any institutional source such
as police, medical institutions, or social service organizations. Only 2 percent of abused
women have ever sought help from the police. Majority of women and men say that a
husband is justified in beating his wife. About 54% women agree that it is justifiable for
a husband to beat his wife under some circumstances.

Present Survey - The purpose of conducting this empirical survey is to identify

the real cause of dowry death and also to know the level of understanding and awareness
about the protective laws for women. To get a definite and transparent result, I have
concentrated my work within the 5 (five) Districts of West Bengal. As the most of the
previous works on this topic were done in the urban area and in the mega city like

272
Kolkata, the researcher has chosen generally the remote area of West Bengal to study the
problem.

This chapter presents an empirical analysis of the data pertaining to the victims of
dowry related offences. The primary data were collected from the cases, registered in all
the police stations under the Jurisdiction of Burdwan District Court. These cases were
initiated as FIR lodged by the defacto complainant. The cases undertaken for the study
are those which have been registered mainly under sections 302, 304, 304B, 306 and
498A of the Indian Penal Code and the Dowry Prohibition Act, which are relevant to the
dowry related violence. From 1st January to 30th November, 2012, the number of cases
registered in 9 police stations under the jurisdiction of Burdwan District Court is 396.
Out of total 396 cases, 101 cases are registered in Burdwan Police Station, 96 cases in
Memari Police Station, 36 cases in Khandoghosh Police Station, 27 cases in Galsi Police
Station, 30 cases in Jamalpur Police Station, 29 cases in Ausgram Police Station, 44
cases in Bhatar Police Station, 17 cases in Raina Police Station and 16 cases in
Madhabdihi Police Station.

Apart from this, the study has also covered an opinion survey from 162 victims or
relatives of victims of five Distrcits of West Bengal i.e. Burdwan, Birbhum, Bankura,
Hoogly and Purulia, regarding the age, education, duration of marriage, social status,
periodicity of violence and the reasons thereof. Actually Sociological profiles of these
victims of dowry related offences were gathered to find out the real cause of dowry
deaths.

A questionnaire and schedule were prepared to get responses from the target
group. In all, questionnaires were sent to about 500 target respondents, whose address
the researcher has collected from the case recorded in the 10 police stations in each
district of West Bengal. But responses were received from 62 persons only. Thereafter,
the researcher has visited the above mentioned addresses personally and collected the
data through information schedule. This time, responses were received from 43 persons.
In this context the researcher has also met with some 57 victims who have faced the
similar type of torture for the demand of dowry but not approached the court.

273
 The questionnaire and schedule are not very brief as the aim of the researcher is
to collect detailed information about the victims of dowry related offences. Both the
questionnaire and schedule cover objective as well as open ended type of questions. The
objective questions required the respondents to only answer with either yes/no or
indicate a choice among two or three options. The open ended questions required to give
brief answers according to his/her level of understanding.

A total number of thirty questions were asked in the questionnaire. The first
twenty five questions are objective questions. First four questions reveal the identity of
the respondents. Next two questions are related to the nature of marriage and duration of
marriage. Question No. 7, 8, 9, 10, 11 & 12 highlight on the existence of violence in the
life of the victim in the matrimonial home in connection with the demand of dowry. Next
four questions i.e. Question No. 13, 14, 15 & 16 discuss the initiatives of the respondent
to get rid from such harassment i.e. whether victim has taken any initiative to move the
court or approach the police. Question No. 17, 18, 19 & 20 represent the present situation
of the victim’s problem and her view about the system of the court in respect of her own
problem. Next five questions reveal numerous facts regarding the respondent like the
effect of violence in her own life and in the life of her children, the cause of her
compromise or not compromise with the husband and in-laws etc. In the questionnaire
and schedule, the last five questions are open ended questions, which reveals the opinion
of the victims and their relatives regarding the practice of dowry and protective laws for
women specially dowry related offences.

An attempt was also made to cover women of all categories – daily wage earner,
agriculture labourer, business woman, service woman, professionals and housewife. The
data gathered are analyzed carefully and presented in the form of tables and inferences
are also drawn on the basis of the table. The data are also analyzed by diagrammatic
representations.

274
 PART -I
Analysis of the Primary Data taken from Case
Registered in all the Police Stations under the
Jurisdiction of Burdwan District Court
Total cases in 9 Police Stations under the jurisdiction of Burdwan District Court
Table – 1

Sl. Name of the Total Dowry related 304B (Dowry Cruelty

Others
No. Police Station cases death cases) 498A

1 Burdwan 101 5 92 4
2 Memari 96 9 84 3
3 Knandoghosh 36 1 27 8
4 Galsi 27 1 26 0
5 Jamalpur 30 3 24 3
6 Ausgram 29 0 26 3
7 Bhatar 44 1 39 4
8 Raina 17 2 15 0
9 Madhabdihi 16 0 15 1
Total 396 22 348 26

275
 Thus from the above table it is clear that in the matter of dowry related violence,
the position of Burdwan P.S. is first, Memari P.S is second, Bhatar P.S is third,
Khandoghosh P.S is fourth, Jamalpur P.S is fifth, Ausgram P.S is sixth, Galsi P.S is
seventh, Raina P.S is eighth and Madhabdihi P.S is ninth. It is also very pertinent to
mention that out of total 396 dowry related violence cases, only 48 cases are registered
under sections 302, 304, 304B and 306, IPC. Thus, in 48 cases death of the women was
caused by harassment for dowry. Out of total 48 cases, the number of cases which are
directly involved with dowry deaths, is 22 and other death cases is 26.Thus, about 88%
cases of dowry torture, 5% cases of dowry deaths and 7% other death cases were
initiated in the 9 police stations under the jurisdiction of Burdwan District Court from 1st
January to 30th November, 2012.

In Burdwan Police Station out of total 101 cases, 92 cases are related with
section 498A IPC along with other sections, 05 cases are directly related with section
304B IPC and 04 cases are related with sections 302 or 304 or 306 IPC. In Memari
Police Station out of total 96 cases, 84 cases are related with section 498A IPC along
with other sections, 09 cases are directly related with section 304B IPC and 03 cases are
related with sections 302 or 304 or 306 IPC. In Khandoghosh Police Station out of total
36 cases, 27 cases are related with section 498A IPC along with other sections, 01 cases
are directly related with section 304B IPC and 08 cases are related with sections 302 or
304 or 306 IPC. In Galsi Police Station out of total 27 cases, 26 cases are related with
section 498A IPC along with other sections, 01 cases are directly related with section
304B IPC and 00 cases are related with sections 302 or 304 or 306 IPC. In Jamalpur
Police Station out of total 30 cases, 24 cases are related with section 498A IPC along
with other sections, 03 cases are directly related with section 304B IPC and 03 cases are
related with sections 302 or 304 or 306 IPC. In Ausgram Police Station out of total 29
cases, 26 cases are related with section 498A IPC along with other sections, no case is
directly related with section 304B IPC and 03 cases are related with sections 302 or 304
or 306 IPC. In Bhatar Police Station out of total 44 cases, 39 cases are related with
section 498A IPC along with other sections, 01 cases are directly related with section
304B IPC and 04 cases are related with sections 302 or 304 or 306 IPC. In Raina Police
Station out of total 17 cases, 15 cases are related with section 498A IPC along with other
sections, 02 cases are directly related with section 304B IPC and no case is related with
sections 302 or 304 or 306 IPC. In Madhabidihi Police Station out of total 16 cases, 15

276
cases are related with section 498A IPC along with other sections, 00 cases are directly
related with section 304B IPC and 01 cases are related with sections 302 or 304 or 306
IPC.

Total cases according to the police station with Sections

Table – 1.1
Burdwan Police Station

Sl. Under Sections

Case No.
No.
IPC Others
1 02/12 498A/406
2 07/12 498A/406/308/120B
3 08/12 498A/406/420/323/506 3/4 DP Act
4 11/12 498A/504/506/34
5 24/12 498A/406
6 26/12 498A/323/307/354/406/506
7 31/12 498A
8 33/12 498A/406/341/323/325/504/34
9 37/12 498A
10 41/12 498A/406/313/316/341
11 40/12 498A/323/34
12 51/12 498A
13 79/12 498A
14 82/12 498A/325/326/307
15 90/12 498A/406/34
16 104/12 498A/506
17 114/12 498A/323/324/406
18 132/12 498A
19 137/12 498A/406
20 149/12 498A/406/307/120B
21 150/12 498A/406
22 155/12 498A/323/406/506
23 163/12 498A/326
24 166/12 498A/325/506
25 171/12 498A/323/506
26 182/12 498A
27 192/12 498A

277
Sl. Under Sections
Case No.
No.
IPC Others
28 195/12 498A/324/406/506
29 197/12 498A
30 211/12 498A
31 214/12 498A/406/307
32 215/12 498A
33 223/12 498A
34 229/12 498A/406
35 269/12 498A/323/406/34
36 283/12 498A/406 3/4 DP Act
37 290/12 498A/302/304B
38 293/12 498A/323/315/406/34
39 296/12 498A/406/313 3/4 DP Act
40 302/12 498A/406/323/34
41 360/12 498A/406
42 361/12 498A/406
43 365/12 498A/406/325/307/34
44 372/12 498A/406
45 377/12 498A/406
46 393/12 498A/406 3/4 DP Act
47 388/12 498A/406/354/323/34
48 407/12 498A/406 3/4 DP Act
49 416/12 498A/406/365/120B
50 402/12 498A/323
51 486/12 498A/406
52 487/12 498A/302/304B/120B
53 533/12 498A
54 490/12 498A/323/406/34
55 548/12 498A/406
56 540/12 498A/406
57 507/12 498A/406
58 430/12 498A/406/324/307/34
59 583/12 498A
60 424/12 498A
61 530/12 498A/323/304/109/34
62 559/12 498A/323/406/120B
63 579/12 498A/406/468/384
64 640/12 498A/323/406/307
65 558/12 498A/323/406/34
66 647/12 498A/406/323/34
67 666/12 498A/304B/302/34

278
Sl. Under Sections
Case No.
No.
IPC Others
68 564/12 498A/406/34
69 644/12 498A/406/34
70 670/12 498A
71 580/12 498A/406/420/506/120B
72 654/12 498A/304B/34
73 698/12 498A/406
74 703/12 498A
75 704/12 498A
76 612/12 498A/406
77 709/12 498A/448/326/307/376/511/34
78 643/12 498A/304B/34
79 677/12 498A/406/323/420/34
80 692/12 498A/406/323/506/494
81 701/12 498A/406/34
82 742/12 498A406/120B
83 761/12 498A/323/324/307
84 763/12 498A/323/34
85 756/12 498A/302
86 773/12 498A/406
87 780/12 498A/406/34
88 782/12 498A/323/325/307/448/506
89 783/12 498A/323/34 3/4 DP Act
90 784/12 498A/323/34/307
91 787/12 498A/307/325/326/34/406
92 789/12 498A/406/506
93 803/12 498A/406
94 810/12 498A
95 830/12 498A/307/407
96 857/12 498A/406
97 859/12 498A/307/34
98 838/12 498A/363/365/366/120B
99 807/12 498A/406/120B
100 885/12 498A/323/306/34
101 891/12 498A/306/34

279
 Table – 1.2
Memari Police Station

Sl. Under Sections

Case No.
No.
IPC Others
1 03/12 498A/406/355/325
2 11/12 498A/304B
3 12/12 498A/304/34
4 13/12 498A/323/307/313/34
5 18/12 498A/304B/34
6 27/12 498A/406/34
7 28/12 498A/323/406
8 36/12 498A/302
9 45/12 498A/323/34
10 52/12 498A/406/323/325/34
11 49/12 498A/406
12 48/12 498A/406
13 59/12 498A/406/379/420
14 57/12 498A/323
15 60/12 498A/406
16 71/12 498A/304/B/34
17 73/12 498A/406/34
18 78/12 498A/304B/34
19 76/12 498A/323/406
20 80/12 498A/323/307/34
21 82/12 498A/406/323
22 83/12 498A/323/494/406/34
23 96/12 498A/406/34
24 101/12 498A/306/34
25 98/12 498A/406/34
26 106/12 498A/304B/34
27 109/12 498A/307/34
28 121/12 498A/406
29 125/12 498A/323/406
30 129/12 498A/406/34
31 130/12 498A/323/324/354/34
32 133/12 498A/406/34
33 132/12 498A/323/406/34
34 139/12 498A/323/406
35 134/12 498A/406/307
36 140/12 498A/497/323/406/506/120B/34
37 142/12 498A/406/307

280
Sl. Under Sections
Case No.
No.
IPC Others
38 144/12 498A/323
39 145/12 498A/406/379/34
40 166/12 498A/323/506/34
41 168/12 498A/323/34
42 170/12 498A/323/506/406/34
43 169/12 498A/406/323/34
44 174/12 498A/323/406/34
45 184/12 498A/364 3/4 DP Act
46 192/12 498A/323/34 3/4 DP Act
47 198/12 498A/304B
48 206/12 498A/304B 3/4 DP Act
49 208/12 498A/406
50 211/12 498A/323/406/34 3/4 DP Act
51 212/12 498A/406/34
52 219/12 498A/406/323
53 220/12 498A/406/323/506/34
54 221/12 498A/406/325/326/307
55 222/12 498A/406/323/307/427/504/120B
56 223/12 498A/406/323
57 224/12 498A/323/406
58 238/12 498A/307/406
59 242/12 498A
60 243/12 498A/323/34
61 276/12 498A/304B/34
62 275/12 498A/323/406/506
63 271/12 498A/323/325
64 281/12 498A/406/323
65 279/12 498A/325
66 293/12 498A/406
67 294/12 498A/406
68 299/12 498A/406
69 300/12 498A/406/34
70 303/12 498A/406/307
71 305/12 498A/406/494
72 306/12 498A/406
73 309/12 498A/406/323/34 3/4 DP Act
74 310/12 498A/323/494/406
75 314/12 498A/323/325/406/34
76 315/12 498A/323/494/34
77 330/12 498A/323/406

281
Sl. Under Sections
Case No.
No.
IPC Others
78 328/12 498A/406/341/506
79 333/12 498A/323/406
80 338/12 498A/304B
81 341/12 498A/406/34
82 344/12 498A/406
83 345/12 498A/323/406/34
84 346/12 498A/419/494
85 360/12 498A/406/323/325/120B
86 376/12 498A/406/34
87 379/12 498A/406/308/34
88 384/12 498A/323/406
89 386/12 498A/406
90 396/12 498A/323/504/506/34
91 411/12 498A/323/406/34
92 414/12 498A/406
93 424/12 498A/323/406
94 427/12 498A/406
95 431/12 498A/406
96 450/12 498A/494

Table – 1.3
Khandoghosh Police Station

Sl. Under Sections

Case No.
No.
IPC Others
1 03/12 498A/406/504/506/34
2 08/12 498A/306
3 26/12 498A/406
4 27/12 498A/406/313/120B
5 31/12 498A/304B
6 34/12 498A/406/307/420
7 55/12 498A/323/325/307/316/34
8 56/12 498A/406/313/201/34
9 59/12 498A/302/34
10 74/12 498A/302/34
11 76/12 498A/406/366/120B
12 77/12 498A/306/34
13 82/12 498A/406
14 92/12 498A/302/34
15 83/12 498A/34 3/4 DP Act

282
Sl. Under Sections
Case No.
No.
IPC Others
16 98/12 498A/406/34
17 112/12 498A
18 103/12 498A/406
19 101/12 498A/306/34
20 111/12 498A/307/34
21 100/12 498A/307/34
22 116/12 498A/406
23 105/12 498A/494/406
24 110/12 498A/406/34 3/4 DP Act
25 128/12 498A/406/323/499/34
26 138/12 498A/406/494/34
27 159/12 498A/323/34
28 121/12 498A/34
29 164/12 498A/406/120B
30 167/12 498A/323/328/406
31 168/12 498A/302/406
32 174/12 498A/406/306/34
33 171/12 498A/406/120B
34 185/12 498A/406/307/34
35 186/12 498A/406/307/34
36 184/12 498A/406/380/34

Table – 1.4
Galsi Police Station

Sl. Under Sections

Case No.
No.
IPC Others
1 04/12 498A/406/323/427/380
2 06/12 498A/406/307
3 35/12 498A/326/307
4 37/12 498A/494
5 38/12 498A/323/506 3/4 DP Act
6 52/12 498A/304B/34
7 53/12 498A/323/325/307/406/120B/34
8 54/12 498A/406/120B
9 71/12 498A/406/307/323/506/34
10 73/12 498A/406/323/34
11 78/12 498A/406
12 89/12 498A/406/120B
13 108/12 498A/406/323/341

283
Sl. Under Sections
Case No.
No.
IPC Others
14 107/12 498A/406
15 106/12 498A/406/120B
16 130/12 498A/448/323/325/354/506
17 149/12 498A/323/406
18 150/12 498A/406/325
19 167/12 498A/406/307
20 190/12 498A/406
21 188/12 498A
22 198/12 498A/406/307/120B
23 242/12 498A/307/323/406/34
24 244/12 498A/494/406/120B
25 245/12 498A/406/34
26 254/12 498A/406
27 270/12 498A/406/323/34

Table – 1.5
Jamalpur Police Station

Sl. Under Sections

Case No.
No.
IPC Others
1 10/12 498A/406/354/349 3/4 DP Act
2 12/12 498A/406/314/120B/506/34
3 14/12 498A/304B
4 26/12 498A/494/504/506
5 41/12 498A/406
6 47/12 498A/304B
7 48/12 498A/323/307/403
8 49/12 498A/307/376/411/406
9 56/12 498A/406
10 61/12 498A/406/326/120B
11 66/12 498A/325/326/307
12 71/12 498A/307/325/506
13 78/12 498A/406/323/506
14 81/12 498A/406
15 95/12 498A/302/304B
16 97/12 498A/406
17 131/12 498A/307/406
18 136/12 498A/325/354
19 145/12 498A/448/302/120B/354/376/511/379
20 157/12 498A/323/34

284
Sl. Under Sections
Case No.
No.
IPC Others
21 163/12 498A/406/323/307
22 166/12 498A/302/34
23 177/12 498A/307
24 187/12 498A/406/323/34
25 196/12 498A/406/420/494
26 197/12 498A/406/323
27 198/12 498A/323/406
28 207/12 498A/302/34
29 212/12 498A/34
30 214/12 498A/34

Table – 1.6
Ausgram Police Station

Sl. Under Sections

Case No.
No.
IPC Others
1 11/12 498A/323
2 09/12 498A/406
3 17/12 498A/406
4 41/12 498A/326
5 45/12 498A/323/34
6 49/12 498A/306/34
7 53/12 498A
8 54/12 498A/406/467/469/471/506
9 55/12 498A/302/34
10 66/12 498A/406/323/307/34
11 77/12 498A/323/406/34
12 80/12 498A/406
13 82/12 498A/323/406
14 83/12 498A/323/406//506
15 84/12 498A/323
16 87/12 498A/323/406
17 97/12 498A/323/34
18 109/12 498A/406/34
19 111/12 498A/406/34
20 123/12 498A/323/313/314/344
21 141/12 498A/406/34 3/4 DP Act
22 145/12 498A/323/34

285
Sl. Under Sections
Case No.
No.
IPC Others
23 147/12 498A/504/506/406/34
24 151/12 498A/406/120B
25 154/12 498A/302
26 162/12 498A
27 176/12 498A/406
28 183/12 498A/406 3/4 DP Act
29 187/12 498A/406/325/308/34

Table – 1.7
Bhatar Police Station

Sl. Under Sections

Case No.
No.
IPC Others
1 12/12 498A/406
2 14/12 498A/307/120B/34
3 17/12 498A/323/325/34
4 37/12 498A/363/307/448/511/34
5 32/12 498A/306/34
6 33/12 498A/323/34
7 35/12 498A/406/307/506/120B
8 43/12 498A/406
9 50/12 498A/406/307
10 53/12 498A/364/504
11 56/12 498A/323/406/506
12 62/12 498A/323/406/34
13 79/12 498A/323/34
14 76/12 498A/406/494/34
15 81/12 498A/323/406/34
16 77/12 498A/406
17 83/12 498A/304B/34
18 92/12 498A/406/323/384/376/511/34
19 96/12 498A/323/406/34
20 88/12 498A/406/506/323/34
21 97/12 498A/323/307/34
22 107/12 498A/406/323
23 136/12 498A/406/34
24 141/12 498A/302/34
25 137/12 498A/323/307/406/506/34
26 138/12 498A/323/504/379/406
27 132/12 498A/406/34

286
Sl. Under Sections
Case No.
No.
IPC Others
28 145/12 498A/323/326/307/34
29 147/12 498A/302/34
30 150/12 498A/406/323
31 151/12 498A/307/406/34
32 164/12 498A/406
33 166/12 498A/341/323/325/307
34 161/12 498A/406/34
35 187/12 498A/323/324/406
36 200/12 498A/323/34
37 186/12 498A/406/324/308
38 203/12 498A/307/406/34
39 180/12 498A/380/506/307
40 221/12 498A/323/406/34
41 155/12 498A/384/323
42 231/12 498A/324/325/326/307/406/34
43 233/12 498A/494/120B
44 246/12 498A/304/314/120B

Table – 1.8
Raina Police Station

Sl. Under Sections

Case No.
No.
IPC Others
1 12/12 498A/406/323
2 25/12 498A/406/313/328/120B
3 26/12 498A/406/326/120B
4 46/12 498A/323/326/406/34
5 48/12 498A/406/323 3/4 DP Act
6 59/12 498A/406/307
7 60/12 498/307/34
8 67/12 498A/323/326
9 65/12 498A/406
10 73/12 498A/406
11 85/12 498A/326/307/406/120B
12 83/12 498A/323/326/324/307/406/34
13 105/12 498A/304B/306/34
14 95/12 498A/324/307/382/494/34
15 113/12 498A/304B/302/34
16 133/12 498A/323/354/406/34
17 96/12 498A/323/324/325/313/406/506/34

287
 Table – 1.9
Madhabdihi Police Station

Sl. Under Sections

Case No.
No.
IPC Others
1 09/12 498A/306/120B
2 11/12 498A/406/307/120B
3 23/12 498A/406/307/120B
4 24/12 498A/323/324/307/406/120B/34
5 29/12 498A/312/313
6 34/12 498A/323/34
7 45/12 498A/325/307
8 47/12 498A/324/307
9 60/12 498A
10 65/12 498A/325
11 59/12 498A/406/307
12 69/12 498A
13 80/12 498A
14 87/12 498A/323
15 89/12 498A/323
16 92/12 498A/323/494/120B

It is evident from the above 9 (Nine) tables that in all 396 cases section 498A IPC
is common. In case of death, sections 302,304,304B and 306 IPC are common along
with section 498A IPC. Apart from death cases, in other cases most common sections are
406, 323, 324, 325, 326, 307, 313, 494, 504, 506 IPC along with section 498A IPC. In
almost all the cases either section 34 or section 120B IPC is common.

The data also reveal that in case of dowry related offences, Dowry Prohibition
Act is rarely involved. Sections of Dowry Prohibition Act is not frequently mentioned
along with section 498A IPC and in connection with any offences relating to the dowry
harassment. Out of total 396 cases sections of Dowry Prohibition Act are directly
mentioned only in 18 cases i.e. about 5% only.

288
 Analysis on the basis of the death cases

During the period from1st January to 30th November, 2012, out of total said 396
cases registered in the nine police stations under the jurisdiction of Burdwan District
Court, 48 are death cases. These 48 cases are initiated under which section and whether
the investigation has been completed or not, or if completed whether Charge Sheet or
Final Report has been submitted or not and if Charge Sheet has already been submitted
then under which section it is submitted, that is to be discussed according to the police
station.

Table – 2(A)
Burdwan Police Station :

Whether C/S
Sl. Case Starting Sections or FRT
Sections in the C/S
No. No. under IPC & others submitted or
not?
Till not
i 290/12 498A/304B/302 Not Applicable
submitted
Till not
ii 487/12 498A/304B/302/120B Not Applicable
submitted
Till not
iii 666/12 498A/304B/302/34 Not Applicable
submitted
Till not
iv 654/12 498A/304B/34 Not Applicable
submitted
Till not
v 643/12 498A/304B/34 Not Applicable
submitted
Till not
vi 530/12 498A/323/304/109/34 Not Applicable
submitted
Till not
vii 756/12 498A/302 Not Applicable
submitted
Till not
viii 885/12 498A/323/306/34 Not Applicable
submitted
Till not
ix 891/12 498A/306/34 Not Applicable
submitted

289
 From the above table it can be said that all the cases registered in the Burdwan
Police Station are at initial stage. Charge Sheet or Final Report has not yet been
submitted even in a single case. Actually, it is very difficult to collect the evidences to
prove the cruelty towards the victim in the matter of dowry related violence as it occurs
generally in the seclusion.

The above table shows that only 9 death cases have been reported in Burdwan
Police Station up to 30th November 2012. Out of total nine cases only 5 cases are
recorded under Section 304B directly and 4 cases are recorded under Sections 302 or 304
or 306. No charge sheet or final report has been submitted as investigation has not yet
been completed and thus it does not arise that under which sections charge sheet or final
report is given.

Table – 2(B)

Memari Police Station :

Whether C/S
Sl. Case Starting Sections or FRT
Sections in the C/S
No. No. under IPC & others submitted or
not?
C.S. No. 52/12 dt. 23/03/12 u/s
i 11/12 498A/304B C.S. Submitted 498A/304B IPC against all 3
accused
C.S. No. 144/12 dt. 31/05/12 u/s
ii 18/12 498A/304B/34 C.S. Submitted 498A/304B/34 IPC against all 3
accused
C.S. No. 154/12 dt. 25/06/12 u/s
iii 71/12 498A/304B/34 C.S. Submitted 498A/304B/34 IPC against all 4
accused
C.S. No. 222/12 dt. 19/08/12 u/s
iv 78/12 498A/304B/34 C.S. Submitted 498A/304B/34 IPC against all 7
accused
C.S. No. 287/12 dt. 27/07/12 u/s
v 106/12 498A/304B/34 C.S. Submitted 498A/304B/34 IPC & 3/4 DP Act
against all 6 accused
C/S No. 195/12 dt.23/07/12 u/s
vi 198/12 498A/304B C.S. Submitted
498A/304B IPC against 1 accused

290
 Whether C/S
Sl. Case Starting Sections or FRT
Sections in the C/S
No. No. under IPC & others submitted or
not?
C/S No. 217/12 dt. 02/08/12 u/s
498A/304B IPC and
vii 206/12 C.S. Submitted 498A/304B IPC and 3/4 DP Act,
3/4 D.P. Act
against 03 accused.
C/S No. 209/12 dt. 02/10/12 u/s
viii 276/12 498A/304B/34 C.S. Submitted 498A/304B/34 IPC against all 7
accused
Till not
ix 338/12 498A/304B Not Applicable
sumbitted
C/S No. 37/12 dt. 03/03/12 u/s
x 12/12 498A/304B/34 C.S. Submitted 498A/304B/34 IPC against all 3
accused.
C/S No. 46/12 dt. 24/03/12 u/s
xi 36/12 498A/302 C.S. Submitted
498A/304 IPC against 1 accused.
C/S No. 89/12 dt. 30/04/12 u/s
xii 101/12 498A/306/34 C.S. Submitted 498A/306/34 IPC against all 4
accused.

In Memari Police station, the progress of investigation is much better than the
Burdwan Police Station. In most of the cases Charge Sheet has already been submitted.
The above table shows that in most of the cases alleged charges against the accused are
proved after the investigation by the police. Out of total 9 dowry death cases, offence
against the accused is confirmed and Charge Sheet is given by the police under section
304B, IPC along with other sections in 8 cases. It is also evident that in all the cases
registered in the police station relating to dowry related offences husband is not the
single accused, other three or four or even 7 relatives of the husband were also involved
as accused in the dowry death cases.

The above table shows that only 12 death cases have been reported in Memari
Police Station up to 30th November 2012. Out of total 12 cases only 9 cases are recorded
under Section 304B directly and 3 cases are recorded under Sections 302 or 304 or 306,
IPC. Out of 12 cases, charge sheet has already been submitted in 11 cases. Out of these
11 cases, those 8 cases, which were initiated under Section 304B, charge sheet has also
been given under the same Section after investigation. And in other three cases where the
cases have been started under 304 or 302 or 306 charge sheet is submitted under Section
306,304,306 respectively. In respect of all above mentioned cases charge sheet has been

291
submitted against all the alleged accused persons. Only in one case no charge sheet or
final report has been submitted as investigation has not yet been completed and thus it
does not arise that under which sections charge sheet or final report is given.

Table – 2(C)
Khandoghosh Police Station :

Whether C/S
Sl. Case Starting Sections or FRT
Sections in the C/S
No. No. under IPC & others submitted or
not?
C/S No. 23/12 dt. 29/02/12 u/s
i 8/12 498A/306 C.S. Submitted 498A/306 IPC against all 5
accused
C/S No. 57/12 dt. 27/04/12 u/s
ii 31/12 498A/304B C.S. Submitted 498A/304B/34 IPC and 3/4 DP
against all 4 accused
Till not
iii 59/12 498A/302/34 Not Applicable
submitted
Till not
iv 74/12 498A/302/34 Not Applicable
submitted
Till not
v 77/12 498A/306/34 Not Applicable
submitted
Till not
vi 92/12 498A/302/34 Not Applicable
submitted
Till not
vii 101/12 498A/306/34 Not Applicable
submitted
Till not
viii 168/12 498A/302B/406 Not Applicable
submitted
Till not
ix 174/12 498A/306/406/34 Not Applicable
submitted

The above table shows that only 9 death cases have been reported in
Khandoghosh Police Station up to 30th November 2012. Out of total 9 cases only 1 case
is recorded under Section 304B directly and 8 cases are recorded under Sections 302 or
304 or 306, IPC. Out of 9 cases charge sheet has already been submitted in 2 cases. Out

292
of these 2 cases, where the case was initiated under Section 304B or 306, charge sheet is
also submitted under Section 304B, 306 respectively. In respect of above mentioned 2
cases charge sheet has been submitted against all the alleged accused persons. In respect
of rest 7 cases, no charge sheet of final report has been submitted as investigation has not
yet been completed and thus in those cases it does not arise that under which sections
charge sheet or final report is given.

Table – 2(D)
Galsi Police Station :

Whether C/S
Sl. Case Starting Sections or FRT
Sections in the C/S
No. No. under IPC & others submitted or
not?
Till not
i 52/12 498A/304B/34 Not Applicable
submitted

The above table shows that only 1 (one) death case has been recorded in Galsi
Police Station up to 30th November, 2012. The said one case is recorded u/s 304B IPC
directly. And in this case no charge sheet of final report has been submitted as
investigation has not yet been completed and thus it does not arise that under which
sections charge sheet or final report is given.

Table – 2(E)

Jamalpur Police Station :

Whether C/S
Sl. Case Starting Sections or FRT
Sections in the C/S
No. No. under IPC & others submitted or
not?
C.S No. 33/12 dt. 28/03/12 u/s
i 14/12 498A/304B C.S. Submitted 498A/302/120B IPC against all 5
accused
C.S No. 121/12 dt. 19/08/12 u/s
ii 47/12 498A/304B C.S. Submitted 498A/304B/34 IPC against all 7
accused
C.S No. 120/12 dt. 04/08/12 u/s
iii 95/12 498A/302/304B C.S. Submitted 498A/304B/34 IPC against all 2
accused

293
 Whether C/S
Sl. Case Starting Sections or FRT
Sections in the C/S
No. No. under IPC & others submitted or
not?
FRMF No. 27/12 dt.31/08/12 u/s
498A/448/302/120B/ FRMF
iv 145/12 498A/448/302/120B/354/376/511/
354/376/511/379 Submitted
379 IPC
C.S No. 155/12 dt. 31/10/12 u/s
v 166/12 498A/302/34 C.S. Submitted 498A/306/34 IPC against all 5
accused
Till not
vi 207/12 498A/302/34 Not Applicable
sumbitted

The above table shows that 6 (six) death cases have been reported in Jamalpur
Police Station up to 30th November 2012. Out of total 6 (six) cases only 3 cases are
recorded under Section 304B directly and 3 cases are recorded under Sections 302 or 304
or 306 of IPC. Out of these 6 cases, charge sheet has already been submitted in 4 cases,
and final report has been submitted in 01 case. Out of these 4 cases, 2 cases were
initiated under Section 304B and charge sheet has also been given under the same
section after investigation. In 1 (one) case though the case has been started under Section
304B but the charge sheet is submitted under Section 302 IPC. And in respect of rest one
where the case has been started under Section 302 IPC; charge sheet is submitted under
Section 306 IPC. In respect of all above mentioned cases charge sheet has been
submitted against all the alleged accused persons. Only in 01 case no charge sheet or
final report has been submitted as investigation has not yet been completed and thus it
does not arise that under which sections charge sheet or final report is given.

Table – 2(F)

Ausgram Police Station :

Whether C/S
Sl. Case Starting Sections or FRT
Sections in the C/S
No. No. under IPC & others submitted or
not?
Till not
i 49/12 498A/306/34 Not Applicable
sumbitted
Till not
ii 55/12 498A/302/34 Not Applicable
sumbitted
Till not
iii 154/12 498A/302 Not Applicable
sumbitted

294
 The above table shows that only 03 death cases have been recorded in Ausgram
Police Station up to 30th November, 2012. All 03 cases are recorded under Section 306 or
302 IPC. In all 03 cases no charge sheet or final report has been submitted as
investigation has not yet been completed and thus it does not arise that under which
sections charge sheet or final report is given.

Table – 2(G)
Bhatar Police Station :

Whether C/S
Sl. Case Starting Sections or FRT
Sections in the C/S
No. No. under IPC & others submitted or
not?
Till not
i 83/12 498A/304B/34 Not Applicable
submitted
Till not
ii 32/12 498A/306/34 Not Applicable
submitted
Till not
iii 141/12 498A/302/34 Not Applicable
submitted
C.S. No. 189/12 dt. 30/09/12 u/s
iv 147/12 498A/302/34 C.S. Submitted 498A/302/304B/34 IPC and 3/4
DP Act against all 5 accused.
Till not
v 246/12 498A/304/314/120B Not Applicable
submitted

The above table shows that only 05 death cases have been recorded in Bhatar
Police Station up to 30th November, 2012. Out of total 05 cases only 01 case is recorded
under Section 304B directly and 04 cases are recorded under Section 302 or 304 or 306
IPC. In only 01 case u/s 304B IPC, charge sheet has not yet been submitted. In another
one case though the case was initiated u/s 498A/302/34 IPC, but the charge sheet is
submitted u/s 498A/302/304B/34 IPC & section 3/4 DP Act. And in respect of rest 03
cases no charge sheet or final report has been submitted as investigation has not yet been
completed and thus it does not arise that under which sections charge sheet or final report
is given.

295
 Table – 2(H)
Raina Police Station :

Whether C/S
Sl. Case Starting Sections or FRT
Sections in the C/S
No. No. under IPC & others submitted or
not?
Till not
i 105/12 498A/304B/306/34 Not Applicable
submitted
Till not
ii 113/12 498A/304B/302/34 Not Applicable
submitted

The above table shows that only 02 death cases have been recorded in Raina
Police Station up to 30th November, 2012. Out of total 02 cases 01 case is recorded under
Section 304B along with section 306 IPC and the another 01 case is recorded under
section 304B along with section 302 IPC. In both the case no charge sheet or final report
has been submitted as investigation has not yet been completed and thus it does not arise
that under which sections charge sheet or final report is given.

Table – 2( I )
Madhabdihi Police Station :

Whether C/S
Sl. Case Starting Sections or FRT
Sections in the C/S
No. No. under IPC & others submitted or
not?
Till not
i 09/12 498A/306/120B Not Applicable
submitted

The above table shows that only 01 (one) death cases have been recorded in
Madhabdihi Police Station up to 30th November, 2012. The said one case is recorded
under Section 306 IPC. And in this case no charge sheet or final report has been
submitted as investigation has not yet been completed and thus it does not arise that
under which sections charge sheet or final report is given.

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 PART –II
Analysis of the observations of the opinion survey
Age wise distribution of victims of dowry related offences
Table – 3
Sl. Age group Number of Victims Total %
No. Approached the not approached
court the court
1 Upto 20 years 24 12 36 22%
2 Between 21 - 30 years 47 21 68 42%
3 Between 31 - 40 years 26 14 40 25%
4 Above 40 years 10 8 18 11%
Total 162 100%

The age wise distribution of victims of domestic violence reveals that only 22%
of the victims are either 20 years or below 20 years of age, 42% of the victims are in the
age group of 21-30 years, 25% of the victims are in the age group of 31-40 years and
11% of the victims are above 40 years. The data also reveal that most of the victims of
dowry related offences are in the age group of 21-30 years. Actually, 20 to 30 years
period is very important as most of the women get married and settle down in family life
during this period. It is also evident from the above table that though at all levels of age,
dowry related violence or tortures are very common, it is remarkably less among the
women of 31-40 years age group because of the increased level of maturity.

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 Occupation of the Victims
Table – 4
Sl. Occupation Number of Victims Total %
No. Approached the not approached
court the court
1 House wife 42 18 60 37%
2 Domestic / Agri Workers
22 27 49 30%
Labour
3 Service Women 28 7 35 22%
4 Professionals 13 5 18 11%
Total 162 100%

It is evident from the table that 37% of victims are housewives, 30% of the
victims are domestic or agricultural workers 22% of the victims are working in the
Government or other non-Government establishments and 11% of the victims are
professionals. The above table also gives information that mostly housewives are the
victims of dowry related violence and there is no doubt that it is because of their
economic dependence on their spouses. Among the domestic workers and agricultural
labourers also such violence are very common. But the most interesting fact is that 22%
service women are the victims of such violence. We often say that education and
economic independence can only help women to get rid from all oppression, but the data

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show that despite their education and economic independence, they are exploited by their
husbands and in-laws.

Occupation of the Spouses of the victims

Table – 5
Sl. Occupation Number of Victims Total %
No. Approached not
the court approached
the court
1 Daily wage earner 21 25 46 28%
2 Business man 39 12 51 31%
3 Service man 27 16 43 27%
4 Professionals 18 4 22 14%
Total 162 100%

From the table-5, it is clear that 28% spouses of the victims are daily wage
earner, 31% spouses of the victims are business man, 27% spouses of the victims are
serviceman, 14% spouses of the victims are professional. The data also reveal that
maximum numbers of abuser are doing business. Violence among the daily wage earner
can also be compared with the business man. It is also clear from the above data that men
of all professional background are the perpetrator of dowry related violence. It is also

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shown that the tendency of not approaching the court is very common among the spouses
of the daily wage earners because of economic reasons and delay in justice process.

Duration of Wedlock
Table – 6
Sl. Duration of Wedlock Number of Victims Total %
No. Approached the not approached
court the court

1 Within 1st years of marriage 19 12 31 19%

2 From 1 - 3 years of marriage 41 22 63 39%

3 From 3 - 7 years of marriage 32 18 50 31%

4 Above 7 years of marriage 13 5 18 11%

Total 162 100%

From the above table we can draw a conclusion that in most of the cases violence
relating to dowry occurs within 1st three years of marriage. However, in 19 % of the
families the violence starts within 1st years of marriage, in 39 % cases violence starts
within 1-3 years of marriage, in 31 % cases violence occurs within 3-7 years of marriage
and only 11 % family faces dowry related violence only after above 7 years of marriage.
Actually, first three years of marriage is very important for the woman who is trying to

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settle in the matrimonial home. And if there is any difference of opinion regarding the
demand of dowry that comes out generally within this period.

Income Group
Table – 7
Sl. Income grow Number of Victims Total %
No. Approached the not approached
court the court
1 Lower Income
36 23 59 37%
(1,000 - 4,000)
2 Middle Income
34 16 50 31%
(4,000 - 8,000)
3 Upper Income
25 16 41 25%
(8,000 - 10,000)
4 Higher Income
10 2 12 7%
(10,000 above)
Total 162 100%

The table depicts that dowry related violence one more rampant among lower and
middle income groups. However, data reveal that 37 % victims belong to lower income
family, 31 % victims belong to middle income family, 25 % victims are from upper
income family and only 7 % are from high income family. Actually, to the poorer section
of the society, dowry is the shortest way to become a rich man by snatching money from
others. Thus, economic insufficiency is the root cause of dowry related violence among

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them. People from upper income group and high income group generally show
reluctance to approach the court. If problem arises then the parties like to settle the
matter personally without taking the help of court or police.

Level of Education
Table – 8
Sl. Level of Education Number of Victims Total %
No. Approached the not approached
court the court
1 School Education 42 27 69 43%
2 Upto Intermediate 27 20 47 29%
3 Upto Graduation 20 7 27 17%
4 Upto Post Graduation 10 2 12 7%
5 Technical / Professional 6 1 7 4%
Total 162 100%

It is evident from the above table that most of the victims have only school
education i.e. about 43%. And 29% victims have got education up to intermediate,
17% of the victims have completed their graduation, only 7% have post graduation
degree and 4% have technical or professional qualification. The data reveals that the
occurrence of dowry related violence is less among the educated women in comparison
to the others.

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 Perpetrators of Dowry related violence
Table – 9
Sl. Perpetrators Number of Victims Total %
No. Approached not
the court approached
the court
1 Husband only 39 29 68 42%
2 FIL + MIL 17 7 24 15%
3 Husband + MIL 40 20 60 37%
4 Other persons also 9 1 10 6%
Total 162 100%

From the table-9, we can assess that husband is the main perpetrator among all
other abuses. Husband together with mother-in-law got the 2nd position. However, 42%
cases violence is committed by the husband only, in 37% cases violence is committed by
the husband together with mother-in-law, 15% of the violence is committed by the
father-in-law and mother-in-law and only 6% cases of violence other persons are
responsible. Though, it is very unfortunate but it is a true fact that mostly husband is the
main culprit behind the dowry related violence. The data also reveal that cases where
husbands are the only perpetrator, wives have not approached the court in most of the
cases. Mother-in-law as a woman should protect the bride from all types of odd situation
is also responsible for the violence against the bride.

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 Family Setup
Table – 10
Sl. Family Setup Number of Victims Total %
No. Approached the not approached
court the court
1 Nuclear 57 30 87 54%
2 Joint 48 27 75 46%
Total 162 100%

Thus, it is quite clear from the above table that violence occurs mostly in the
nuclear families. However, 54 % of the violence occurs in the nuclear families and 46
% of the violence occurs in the joint families. Actually, in the nuclear family it is very
easy for the husband to torture the wife with the intention to satisfy his demand and no
one is there to resist him.

304
 Initiation of Proceedings
Table – 11
Sl. Initiation of the proceedings Number of %
No. Victims

1 Own intitiative of the victim 81 50%

2 Initiation of the parents of the victims in case of
31 19%
death of the victim
3 Initiation of the friends and relatives 17 11%
4 Voluntary organisation 33 20%
Total 162 100%

The above data clarify that about 50% cases victim has taken the initiative to
approach the court to get remedy by own. In case of the death of the victim 19% cases
parents of the victim have taken the initiatives. In 11% cases friends and relatives of the
victims have taken the initiatives to moor the court. And about 20% cases voluntary
organization initiated the proceedings against the victim. Actually when it is felt by the
victim that it is not possible for her to continue her matrimonial relationship with her
husband and in-laws, she takes the initiative by her own to get remedy from the court.
Parents want to move the court only in case of the death of the daughter to punish the
husband and his relatives. Otherwise friends and relatives always try to compromise
between husband and wife.

305
 Nature of harassment
Table – 12
Sl. Nature of harassment Number of Victims Total %
No. Approached the not approached
court the court
1 Mental torture 38 52 90 56%
2 Mental and physical torture 67 5 72 44%
Total 162 100%

The table shows that mental torture is very common matter to all. Around in 56
% family, women face mental torture and 44 % families face mental and physical torture
both. It is very important to mention that the incident of physical torture is less than the
mental torture. It is also evident that in case of mental torture victims are very much
reluctant to approach the court. They consider it as common matter.

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 Cause of torture
Table – 13
Sl. Cause of torture Number of Victims Total %
No. Approached not approached
the court the court
1 Demand of Dowry 81 43 124 77%
2 Interferance of Guradian
8 2 10 6%
in conjugal life
3 Alcoholism 5 2 7 4%
4 Extra morital relationship 3 5 8 5%
5 Others 8 5 13 8%
Total 162 100%

The above data relating to the cause of torture show that around 77% cases dowry
demand is the main cause of violence against married women. In 6% cases violence is
caused due to interference of the guardians. About 4% cases, Alcoholism is the reason of
violence. In 5% cases extra-marital relationship is the cause of violence and 8% cases
other factors are the reasons of violence against women by the husband and in laws.
Thus, the data reveal that dowry is the root cause of violence against married women.

307
 Reasons for compromise
Table – 14
Sl. Reasons for compromose Number of Victims Total %
No. Approached not approached
the court the court
1 For children 45 19 64 40%
2 Lack of parental support 6 11 17 10%
3 Social prestige 13 6 19 12%
Lack of economic
4 41 21 62 38%
support
Total 162 100%

The data says that about 40% cases victims compromised with their spouses only
for the interest of the children. In 38% cases women says that the reason of such
compromise is nothing but the lack of economic security. Lack of support of the natal
family also compels the victims not to take action against the husband and in-laws in
10% cases. Social status, family prestige etc. work behind such compulsion in 11%
cases. Self sacrifice is the nobility of Indian women and thus for the sake of her children
forgiving her abuser husband is very usual matter to her.

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 Span of time within which decree is awarded
Table – 15
Sl. Span of time within which decree is Number of %
No. awarded Victims

1 Within 1 year 19 18%

2 1 to 3 years 42 40%
3 3 to 5 years 28 27%
4 5 years above 16 15%
Total 105 100%

The above table reveals that around 40% cases decree is awarded in between 1 to
3 years in 27% cases decree is awarded in between 3 to 5 years, in 18% cases Judgment
is given by the court within 1 year and in 15% cases court passes the Judgment after 5
years.

Opinion about the practice of dowry

Table – 16
Sl. Opinion about the practice of dowry Number of %
No. Victims

1 It is bad and should be stopped 78 49%

2 It is helpful for bride and bridegroom 39 24%
3 It is not bad if it is within one's capacity. 44 27%
Total 162 100%

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 Table 16 represents the attitude of the victim regarding the practice of dowry.
Around 49% victims believe that practice of dowry is bad and this evil practice should be
eradicated with strict measures. About 24% victims are of the opinion that dowry is not
bad as it helps newly wedded bride and bride groom to settle in life. In 27% cases
victims said that it is a social practice and if it is within one’s capacity then it should not
be stopped. So from the above discussion it is clear that the practice of dowry is deeply
rooted in the mind of the people. Though, most of the victims are subjected to violence
due to dowry, but still they believe that dowry is not totally bad. If we try to eradicate
this evil completely from our society, we should make the women aware first regarding
the evil of dowry.

Awareness about the protective laws for women

Table – 17
Sl. Awareness about the protective laws for Number of %
No. women Victims

1 Aware 67 41%
2 Not aware 43 27%
3 Aware but reluctant to approach the court 52 32%
Total 162 100%

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 It is important that table 17 shows that around 41 % victims are aware about the
existing protective laws for women, 27 % victims are not aware about the women related
legislation and 32 % victims said though they are aware but they have no interest to take
the help of those laws to punish their husband and in-laws. According to them in most of
the cases women are harassed. The long process of Justice delivery system, insensitivity
of the police, advocates and judges, improper investigation of the police lead to the
acquittal of the husband and in-laws in most of the cases. Thus, to them there is no utility
of such protective laws for women.

Chance of abuse of law

Table – 18
Sl. Chance of abuse of law Number of %
No. Victims

1 Chance of abuse 54 33%

2 No chance of abuse 108 67%
Total 162 100%

311
 On the issue of abuse of protective laws in favour of women, 67% women believe
that there is no chance of abuse of such laws by women and 33% women are of the view
that there is a chance of abuse of the protective laws in favour of women by women.
Though it is true that some women are abusing existing protective laws for women like
Section 498A, but these Sections are very important for the protection of women.

Adequacy of Law
Table – 19
Sl. Adequacy of Law Number of %
No. Victims

1 Laws are adequate 79 49%

2 It should be more stringent 83 51%
Total 162 100%

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 However, Table No 19 shows that 49% women think that existing protective laws
for women are adequate for the protection of women and 51% women believe that these
laws should be more stringent, so that offender can get stricter punishment.

At last, it can be said from the above analysis that abuse of wife by the husband
and in-laws are very common factors of the majority of the family. And among various
factors for the harassment of women, use of violence for the demand of dowry is most
rampant. Thus we can say that demand of dowry is the root cause of violence against
married women.

The data also reveal that about 77% marriages, parties demanded dowry but
generally no one reported to the police or approach the court regarding that. People make
report only when problem arises in respect of that. It is also evident that if there was no
demand of dowry at the time of marriage or if the marriage was love marriage and it was
conducted without the permission of the guardian, afterwards husband and in-laws
demanded dowry on many occasions and tortured the wife for not fulfilling their
demands.

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 The data explores that dowry related violence mostly occurs within first three
years of marriage. Actually, woman who comes to stay with her husband and in-laws in
the matrimonial home, need some time to adopt their culture, and in this process husband
should help her in every matter but unfortunately, husband is the main perpetrator of the
use of violence against his wife from the very first day of their marriage for fulfilling his
demand.

It is interesting to note that where the victims have approached the court, she has
taken the initiative by herself. In case of the death of the wife, the parents of the victim
take the initiative to report the matter to the police or court. But general tendency of the
relatives of the victim is to settle the matter outside the court and send the victim to the
matrimonial home to live with her husband. About 40% cases for the interest of the
children, 38% cases for the lack of economic support, 10% cases for the absence of
support of the natal family members, victims prefer to return to the matrimonial home
instead of approaching the court.

Another important fact which the data revealed is that women are not generally
interested to approach the court or go to the police for relief. They have no faith upon the
Justice delivery system. About 27% of the victims of the dowry related violence show
reluctance to approach the court, because of the long process of trial, ineffective
enforcement machinery, improper investigation etc. and insensitivity of Judiciary. They
have shown the reason that they have seen that accused husband and in-laws are
generally released after some period and got married for the second time.

However, data also reveal that 27% women are not aware about the protective
laws for women, 32% women know the law but show reluctance to use these laws. Most
interesting fact is that about 51% women believe that women related laws should be
more stringent so that accused can get strict punishment, but most of them are not ready
to take the help of the court to punish their husband and in-laws.

Lastly 67% women believe that there is no possibility of misuse of the law
relating to dowry deaths under section 304B of IPC or cruelty by husband and in-laws
under section 498A of IPC. Thus they believe that these sections are very important for
the protection of the women from the hands of the greedy husband and in-laws.

314
 Thus after thorough analysis of the primary data the researcher draws the
following conclusions:-

(1) Most of the victims of dowry related violence are in the age group of 21 -30
years.
(2) Most of the victims have only school education. The dowry related violence
crosses all boundaries. It is rampant among all classes of people. Even in case of
marriage of an educated and employed woman, dowry is the pre-condition.
(3) The tendency of using violence against wife is very common among the daily
wage earner and business people than others. Actually, men from all profession
are involved in the practice of harassing their wives for dowry.
(4) The incidents of violence for dowry against women mostly happen in the lower
and middle income family.
(5) Violence against women for dowry generally occurs within 1-3 years of
marriage.
(6) Violence is widespread in nuclear families when compared to joint families.
(7) Most of the victims have no faith on patriarchal Society, family, police, and the
administration, thus they are reluctant to approach the Court or Police to get
justice.
(8) When the victims have approached the Court, they have taken the initiatives by
own, which implies that unless compelled by the situation, they want to get rid of
the unhealthy relationship.
(9) The data also reveal that the practice of dowry-is rampant among all classes of
people in the Society. Even in case of educated and employed women dowry is
the pre-condition of marriage.
(10) In majority of the cases, victims compromise with their husband and in-laws for
the sake of her children.

However, the system of dowry leads to numerous social evils like female
foeticide, female infanticide, early marriages, conjugal discord, economic exploitation,
transportation of girls, causes of frustration among unmarried girls and death of married
girls due to pressure etc.

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CONCLUSION AND SUGGESTION

CHAPTER - 6

Chapter - 6

316
 CONCLUSION AND SUGGESTION

The chapter concludes the study in general and whether there is a need of any
change in the existing laws relating to women, in particular. It also makes certain
suggestions in the light of conclusion.

Since time immemorial women are subjected to exploitation and fighting for the
equal treatment like men. Even after 65 years of Independence we have not been able to
root out the problems like sex discrimination and violence against women from our
society. Though India has already proved itself and achieved a luminous position in the
international world but at the same time, it is also known as the worst country in the
matter of treatment with women. Thus India’s policy of Globalization and modernization
will go in vain until and unless all the rights of women are given proper priority.
Women’s fight for the equality at par with man is a fight for the Justice for its own sake,
fight for the inbuilt patriarchal attitude of the society, fight for the gender discrimination
not a fight against men. Indian women are directly or indirectly compelled to sacrifice
her own needs feelings or interest constantly for the needs, feelings and interests of some
other; be it children, husband family or community. Sometimes, victimization occurs
through emotional process in the name of relationship. Actually, Indian women are
trained with a lesson that it is respectable for them to die in the husband’s home even if
they are devoid of all virtues. They accept it as the cardinal principle of their life. This is
the social reality of a woman’s life.

In this part, the author has made an attempt to discuss the workings of all the
relevant international legal instruments for the development of women protection and to
identify the loopholes in it. It also includes the provisions regarding international
regional instruments in favour of women, its impact in national law and the provisions of
international legal instruments relating to dowry deaths. However, it can be said that
several attempts have been made at the international level to prevent violence and
exploitation of women, but, the condition remains unchanged. International law provided
many fruitful forums for developing and advancing law relating to women. But, it lacks
enforcement machinery. The enactment and enforcement of the obligations of
internationally agreed commitments in the domestic laws remains with the member states

317
and in this area member states are not working properly. Without proper national laws
and their effective enforcement, the importance of international law will be muffled and
of little significance. International law has no authority to control the domestic issue
without taking the help of the national government. Thus member states have to make
proper laws incompliance with the provisions of international law and to cooperate with
the international bodies. Only in this way proper assessment of progress of the crisis can
be done.

The researcher has tried to assess all the existing protective laws relating to
women and to identify the lacuna in it. This part of the discussion also incorporated
special measures in West Bengal for combating dowry deaths. Thus, it tries to evaluate
all the existing laws relating to women in general and dowry related laws in West Bengal
in particular. However, after thread bare analysis, it can be said that in respect of the
status of women in India, there is a gap between the notional possibilities and their actual
materialization. Existing legal frameworks at the national level continue to be
inadequate. The constitution of India recognizes equality of sexes and provides with
many provisions, which are more favourable to women but in actual practice they are
observed more in breach than in compliance. To fulfill the constitutional mandate, our
Government has taken the policy for economic empowerment of women through poverty
eradication, micro credit programmes, training of women to facilitate their role in all
walks of life. The social empowerment of women is made possible only through
effective materialization of the constitutional provisions regarding education, health,
nutrition Sanitation, gender justice and eradication of violence against women in all its
forms etc. The provisions of criminal laws in favour of women are not adequate. Many
laws need amendment, punishment for most of the women related offences are not
stricter, bails to the accused are granted easily, in most of the cases investigation made
by the police are not proper. The place of women under personal law is discriminatory. It
treats women with inequality. Men are given higher position and women are looked as
inferior to them. There are many discriminatory provisions regarding the age of
marriage, divorce, adoption, guardianship of children and inheritance right of women.
Patriarchal attitude is very much evident here. Only solution to this problem is the
enactment of the uniform civil code. But our Govt. is maintaining a deep silence in this
regard. The law combating domestic violence can’t be implemented properly due to the
hesitant approach of the women to move the court. Indian women do not like to make the

318
matter of domestic violence public because of shame and family prestige. Despite the
existence of various protective legislations, working women are still in disadvantageous
position. Legislative guidelines are not maintained strictly in several industrial sectors. In
most of the cases the unorganized women work force do not get the equal remuneration
to that of their male counterparts, even for the same type of works involving same skill
and efforts. However, NHRC acts as a reminder of the state obligations towards the
fulfillment of women’s rights and the National Commission for Women is preparing the
women for tomorrow by organizing many awareness programmes for women and make
report to the Government regarding all problematic issue related to the women.

And, an effort has also been made to discuss the laws relating to the dowry
regime in West Bengal. However, we can say that the laws to prevent dowry offences
especially dowry death are not adequate. It is considered as the offences against
individual, not against the state. The definition of Dowry is not comprehensive enough,
the husband and his family can easily escape from the liability of demanding dowry by
taking the plea of gift of marriage. There is a confusion regarding what gift is voluntary
and what is given under pressure of a demand. Under the Act, both the giver and taker of
dowry are guilty. However, an important question can be raised that if a giver is
recognized as guilty then who will give the evidence against the dowry seeker? The
bride’s family is in vulnerable position and it is a matter of family honour to them. Thus
women’s rights are not properly implemented and for these reasons we can’t see any
instance of being prosecution of bride's family for giving dowry. To make the law
effectual, people should be responsive of the law. But, unfortunately most of the
criminals in dowry death cases are released on the ground of benefit of doubt due to lack
of evidences. It creates reluctance in the mind of the victims not to approach the Court.
The trial Courts in these cases are not sensitive enough to deal with the cases with proper
caution and unnoticed the essential issues of the case without even correctly arguing the
same.

The author has made an attempt to examine the role of the judiciary thoroughly.
However, after a serious analysis of the role of Judiciary in delivering justice to women
on the strength of the existing laws, we can come to the conclusion that in order to keep
the reputation and credibility of the Judiciary intact, some mechanism should be adopted.
Court of Justice is called as ‘temple of Justice’, which stands for sacredness, clarity and

319
certainty. Judges are the protector of law and instrument of Justice delivery system.
Judiciary is no doubt the last option to the common man. The Indian Judiciary is now in
a position to expose the area darkness. It has upheld the rule of law, preserved our
constitutional values and made some fundamental rights living realities for some of the
deprived and oppressed segments of Indian humanity like women. Though, the fight for
women’s right is one of long and hard struggle, but, Indian Judiciary can make it easy
with its positive view towards women protection by interpreting various provisions of
the enactments dynamically.

Thus, after having a thread bare evaluation of all the protective measures relating
to women on the strength of the existing laws and role of Judiciary in protecting the
women at the national and international level, we can say that the famous statement
“Justice is not for justice’s sake only, but it includes social Justice, Socio Economic
Justice and distributive Justice” is true in respect of women. It is unquestionable that law
has failed to solve the problem. Most of the cases against women go unreported because
of insensitive Criminal trial procedure. The victim women have to pass through many
unsympathetic cross examinations, which is quite uncomfortable. The poor rates of
conviction also discourage many victims to seek legal remedy. In the absence of
adequate protective laws for the victims of harassment, torture and sexual molestations,
criminal justice system fails to provide relief to the genuine sufferers. Time has come for
an alternative remedy of the crisis, because abuse of women is increasing day by day.
But, still they are covered themselves in a veil of silence. They have no faith on
patriarchal Society, family, police, and the administration. The empowerment of women,
gender equality and gender Justice will remain empty words so long women refuse to
speak up. Only they can take up the important step for fighting their own cause, they
have to seek remedy for the consequences of abuse, exploitation and violence. Increase
in the literacy rate will certainly lessen the problem of females. It will also promote
women to affirm their rights. Government should arrange proper orientation programmes
for women to appreciate the value and worth of woman in family, society as a human
person.

In this part of the analysis of empirical survey regarding dowry related offences
over five District of West Bengal viz. Burdwan, Bankura, Birbhum, Hoogly and Purulia,
Researcher has seriously considered the root cause of the problem faced by women. The

320
discussion incorporates the study of all the cases registered in the nine (9) Police Stations
under the jurisdiction of Burdwan District Court under sections 302, 304, 304B, 306,
498A of IPC etc. Beside this it also covers an opinion survey of 162 victims of dowry
related offences relating to the age, education, social status, occupation, income of the
victim and spouses etc. However, the study reveals that the harassment for dowry is the
root cause of violence against married women. The very interesting fact is that in cases
of 77% marriages, in-laws demanded dowry, but only 27 % victims reported regarding
that. Some of the victims exposed that if the in-laws did not demand dowry at the time of
marriage, they demand gifts or cash after their marriage on various occasions. When the
parents of the victim failed to fulfill the demands, husband and in-laws harass the bride.
This practice of dowry increases the greed of the groom’s family for money, which they
can easily get from bride’s family by compelling her. The persistent demand for dowry
and ill treatment in the matrimonial home due to failure to satisfy demand creates tension
or depression in the mind of the bride. In some cases husband or in-laws physically
torture the bride to extort more money from her relatives. As a result, if the bride finds
no way out, commits suicide. Many women have also been killed by their husbands and
in-laws due to the failure of the bride’s relatives to satisfy their greed. They have the
intention to extort more dowries by marring once again. The data also reveal that the
practice of dowry-is rampant among all classes of people in the Society. Even in case of
educated and employed women dowry is the pre-condition of marriage. Thus, we can say
that nothing but the greed of the people is the root cause of dowry related offences. The
hypothesis that greed for money is the root cause for violence against married women is
thus, proved. The data collected from the cases records of Burdwan District Court from
1st January to 30th November 2012 in connection with dowry related offences reveal that
out of total 396 cases, 22 cases are relating to dowry death under section 304B of IPC,
348 cases are registered under section 498A of IPC along with other sections and 26
cases are registered under sections 302 or 304 or306 of IPC. From the data it is also clear
that most of the victims are aware about the protective laws in favour of women, but,
they don’t like to approach the Court, because they have no faith in the justice delivery
system. It is their firm belief that they will not get justice because after some period the
accused will be released. It is very unfortunate that even the educated women express the
same view. After thorough analysis of the primary data from the victims of dowry related
violence, the researcher draws the following points:

321
(1) Most of the victims of dowry related violence are in the age group of 21 -30
years.
(2) Most of the victims have only school education. The dowry related violence
crosses all boundaries. It is rampant among all classes of people. Even in case of
marriage of an educated and employed woman, dowry is the pre-condition.
(3) The tendency of using violence against wife is very common among the daily
wage earner and business people than others. Actually, men from all profession
are involved in the practice of harassing their wives for dowry.
(4) The incidents of violence for dowry against women mostly happen in the lower
and middle income family.
(5) Violence against women for dowry generally occurs within 1-3 years of marriage.
(6) Violence is widespread in nuclear families when compared to joint families.
(7) Most of the victims have no faith on patriarchal Society, family, police, and the
administration, thus they are reluctant to approach the Court or Police to get
justice.
(8) When the victims have approached the Court, they have taken the initiatives by
own, which implies that unless compelled by the situation, they want to get rid of
the unhealthy relationship.
(9) The data also reveal that the practice of dowry-is rampant among all classes of
people in the Society. Even in case of educated and employed women dowry is
the pre-condition of marriage.
(10) In majority of the cases, victims compromise with their husband and in-laws for
the sake of her children.
(11) The system of dowry leads to innumerable social evils like female foeticide,
female infanticide, early marriages, conjugal discord, economic exploitation,
transportation of girls, a cause of frustration among unmarried girls and death of
married girls due to pressure.

Now, on the basis of foregoing discussion the hypotheses identified in

introductory part are to be tested and summarized as follows.

The first and foremost reason of violence against married women was presumed
as the greed for money. The empirical study of dowry related offences reveals that in
cases of 77% marriages, in-laws demanded dowry. Some of the victims exposed that if

322
the in-laws did not demand dowry at the time of marriage, they demand gifts or cash
after their marriage on various occasions. When the parents of the victim failed to fulfill
the demands, husband and in-laws harass the bride. This practice of dowry increases the
greed of the groom’s family for money, which they can easily get from bride’s family by
compelling her. The persistent demand for dowry and ill treatment in the matrimonial
home due to failure to satisfy demand creates tension or depression in the mind of the
bride. In some cases husband or in-laws physically torture the bride to extort more
money from her relatives. As a result, if the bride finds no way out, commits suicide.
Many women have also been killed by their husbands and in-laws due to the failure of
the bride’s relatives to satisfy their greed. They have the intention to extort more dowries
by marring once again. The data also reveal that the practice of dowry-is rampant among
all classes of people in the Society. Even in case of educated and employed women
dowry is the pre-condition of marriage. Thus, we can say that nothing but the greed of
the people is the root cause of dowry related offences.

The author assumed that the existing legal system and laws are deficient and
inadequate and successfully verified this hypothesis in prospective analysis. It can be
said that after having a careful analysis of all the protective measures relating to women
at the national and international level, we may come to a definite conclusion that the law
has failed to give remedy to the women. International law offers many fruitful forums for
the development and advancement of women’s right. But, it lacks enforcement
machinery. For the proper enforcement of the international obligations in the domestic
laws, member states have to take initiatives by making laws in this respect and in this
area member states are not working properly. At the national level also there is no
question that law has failed to solve the problem. Many laws need amendment,
punishment for most of the women related offences are not stricter, bails to the accused
are granted easily, in most of the cases investigation made by the police are not proper.
There are many discriminatory provisions regarding the age of marriage, divorce,
adoption, guardianship of children and inheritance right of women. Patriarchal attitude is
very much evident here. The law combating domestic violence can’t be implemented
properly due to the hesitant approach of the women to move the court. The conditions of
working women are still in disadvantageous position. Legislative guidelines are not
maintained strictly in several industrial sectors. In most of the cases the unorganized
women work force does not get the equal remuneration to that of their male counterparts.

323
Most of the cases against women go unreported because of hurtful Criminal trial
procedure. The victim women are subject to rigorous cross examinations during and after
the incident at the police station and in the court, which is quite embarrassing. The poor
rates of conviction discourage many victims not to seek legal remedy. In the absence of
adequate protective laws for the victims of harassment, torture, marital rape and sexual
molestations, criminal justice system fails to provide relief to the genuine sufferers.
Thus, on the basis of the above discussion, it can be said that the existing laws are not
adequate to give proper justice to women.

The hypothesis of inadequacy in the laws relating to dowry generated offences

resulting contradictory sentences has been analyzed. However, we can say that the laws
to prevent dowry offences are not adequate. It is considered as the offences against
individual, not against the state. The definition of Dowry is not comprehensive enough,
the husband and his family can easily escape from the liability of demanding dowry by
taking the plea of gift of marriage. There is a confusion regarding what gift is voluntary
and what is given under pressure of a demand. Under the Act, both the giver and taker of
dowry are guilty. However, an important question can be raised that if a giver is
recognized as guilty then who will give the evidence against the dowry seeker? The
bride’s family is in vulnerable position and it is a matter of family honour to them. Thus
even when law certifies women’s rights they are not properly implemented and for these
reasons we can hardly see any instance when the bride's family being prosecuted for
giving dowry. To make the law effectual, people should be responsive of the law. But,
unfortunately most of the criminals in dowry death cases are released on the ground of
benefit of doubt due to lack of evidences. It creates reluctance in the mind of the victims
not to approach the Court. The trial Courts in these cases are not sensitive enough to deal
with the cases with proper caution and unnoticed the essential issues of the case without
even correctly arguing the same. Thus, the third hypothesis is verified.

The researcher sincerely analyzed the presumption that ineffective enforcement

of the legal provisions especially in case of dowry related violence contributes to a large
number of acquittals. The anti dowry laws are not flawless legislation. In respect of
eradicating dowry, it has failed to achieve its object. An enactment of law will not
automatically wipe out the deep rooted social evil by itself, effective enforcement
machinery is required to implement it. In absence of effective enforcement machinery,

324
the enactment of all laws will be an empty promise. The definition of ‘dowry’ is not
comprehensive enough, the husband and his family can easily escape from the liability of
demanding dowry by taking the plea of gift of marriage. There is a confusion regarding
what gift is voluntary and what is given under pressure of a demand. Thus, even though
law guarantees women’s rights they can’t be properly implemented. The definition of
‘dowry deaths’ is also limited within the scope of cruelty. It should be enhanced to
include other situations of harassment also. Section 498A should include the cruelty of
other women also. The provisions of personal law in respect of age of marriage, divorce,
adoption, guardianship of children and inheritance right of women are discriminatory
and only solution to this problem is the enactment of the uniform civil code. But our
Government is not showing any concern in respect of it. The law combating domestic
violence can’t be implemented properly due to the hesitant approach of the women to
move the court. If the victim woman goes to make report, she is harassed by the police or
other persons whom she has to meet in this respect. The Govt.’s attitude is conspicuous
as it has ignored the humanistic instruction of the court and being lethargic in
considering the Law commission reports. Legislature has also not done its work by
making amendment of the flaws in the laws. The conditions of working women are still
in disadvantageous position. Legislative guidelines are not maintained strictly. In most of
the cases the women does not get the justice. Thus enforcement machineries are not
effective enough. Thus, in absence of specific guidelines to deal with the cases and for
improper investigation, large numbers of accused are getting acquittal on the ground of
benefit of doubt.

On the issue of insensitivity of the human being results in gender injustice, the
author analyzed the problem of gender justice with utmost sincerity. Due to different
culture and economic status of different community, women face discrimination. Social
bigotry and economic denial on the basis of gender haunt them everywhere in their life.
It is an age-old belief that the different characteristics, roles and status attributed to
women and men in the society are quite justified. The society at large is also affected
badly by this discrimination in the field of education, employment and health. Indian
Constitution provides equal status to men and women. But in reality, women can’t enjoy
this equality of status with men due to socio economic structure of our society. In Indian
family life patriarchal attitude is practiced in a very conservative way. This attitude is
also reflected in the approach of the legislature and judiciary. Our Government has not

325
taken any initiatives to make uniform civil code with the knowledge that the position of
women is discriminatory in personal law. It also shows no interest to make any law on
the issues like sexual harassment of women in workplace and marital rape. Judiciary has
the great responsibility to fill up the gap of the legislative loopholes and remind the
Government regarding the necessity of making law on any particular issue. But our
judiciary is very much hesitant to interfere in the relationship of husband and wife. In the
matter of dowry related offences also different Courts are giving different types of
sentences because of the vague provisions of cruelty under section 498A and dowry
deaths under section 304B of IPC. Thus, human beings are insensitive towards women,
which lead to gender injustice.

The author in totality on the basis of foregoing discussion and analysis concludes
the present research project with following suggestions:-

(1) Equal status of women with men should be observed as a basic condition of social,
economic and political development of the nation.
(2) To emancipate women, improvement of opportunities for education, and employment
should be given precedence.
(3) The legislatures should control the situation by enacting adequate laws and by
modifying the discriminatory laws. The substantive and procedural laws should be
simplified.
(4) Section 2 of the Dowry Prohibition Act, 1961 needs to be amended to cover all types
of presents taken in the name of voluntary gifts. Section 304B of IPC also needs
amendment for enlarging its scope to include the harassment of all women; married,
unmarried and widow.
(5) The courts are expected to be more responsive in cases involving crime against
women. The Courts should treat women related cases with a more practical approach and
not allow the criminals to escape on account of procedural technicalities.
(6) A gender unbiased workers should be appointed to control the gender based hostility.
Mahila Thana, Mahila Lok Adalats and Mahila Courts should be started.
(7) The Provisions of C.P.C, Cr.P.C. and Evidence Act should be amended to include
provisions, which may empower Court to compel a person to undergo a medical test,
DNA finger printing or the like even against his wishes.

326
(8) More emphasis should be given on the compromise in- between the husband and wife
in domestic violence cases out of formal courts.
(9) Refresher programmes or special training programmes for Judges should be made
compulsory so that they can follow a consistent guideline to deal with the women related
cases.
(10) Police personnel should also be given special training to investigate in the women
related cases.
(11) Gender impartiality awareness for males and self-protection training programmes
for females should be made compulsory by the Government free of cost.
(12) Attitudes of the society with regard to the treatment of women should be changed
completely and for that purpose community-based scheme should be given priority.
(13) The reluctance of women to report the crime against them should be treated with
utmost sincerity and delicacy. Government should arrange proper orientation and
training programmes for the women, so that they can realize their own worth and raise
their head against the odds of life.
(14) Government should also adopt some rehabilitation programme for the victim
women and help them to become independent.
(15) The recognition of the vital role of women and the work they do at home should be
given. To change its attitude, awakening of the collective realization is the need of the
day.
(16) Men should accept the fact that women are their equal partners. If men share their
position with women by forsaking male ego and women receive education and become
economically independent, the possibility of the exploitation of the women will reduce
surely.
(17) The media has to play the role to build the confidence of the women, so that they
can fight against all the odds and also rise above the thinking of the people to change
their attitude towards women.
(18) The courts are expected to be sensitive in cases involving crime against women. The
Courts would deal with such cases in a more realistic manner and not allow the criminals
to escape on account of procedural technicalities.
(19) Government should work together with NGO to curb the offence of violence against
women and for this purpose greater support should be given to these organizations.
(20) Matrimonial disputes relating to women should be settled out of the court within a
short span of time.

327
(21) Women group should be more active to eradicate the matter of domestic violence by
creating community club, which will create awareness among women in the grassroots
level.

However, it is submitted that we have been able to come up with a meaningful

study on protective laws for women. The researcher concludes with the request that
dowry related violence for the non-payment of dowry should be considered as a serious
violation of ‘right to life’ and the principle of ‘live and let live.’

328
 ANNEXURE – 1
−L¡−ÕQ−eu¡l

1) Bfe¡l haÑj¡e hup La ?

........................... hvplz
2) Bfe¡l ¢nr¡Na −k¡NÉa¡ ¢L ?
.............................................................
3) Bfe¡l AbÑ Ef¡SÑ−el −L¡e Evp B−R ¢L?
qyÉ¡...................... e¡......................
4) Bfe¡l −L¡−e¡ p¿¹¡e B−R ¢L ?
qyÉ¡...................... e¡......................
k¢c b¡−L, La Se ? −R−m ..............Se, −j−u ..................Se
5) La¢ce qm Bfe¡l ¢hh¡q q−u−R ?
................................. ¢ce/j¡p/hvpl
6) Bfe¡l ¢hh¡q ¢L dl−el ¢Rm ?
i¡−m¡ h¡p¡l ¢hh¡q................................. pðå L−l ¢hh¡q....................................
7) Bfe¡l nÄölh¡s£ −b−L Bfe¡l ¢hh¡−ql pju −L¡e fZ c¡h£ L−l¢Rm ?
qyÉ¡...................... e¡......................
8) Bfe¡l ¢hh¡¢qa S£h−e −L¡−e¡ ¢ekÑ¡ae ¢Rm / B−R ¢L ?
qyÉ¡...................... e¡......................, LMeJ LMeJ...........................
9) ¢L dl−el ¢ekÑ¡ae −q¡a ?
j¡e¢pL ....................... n¡¢ll£L............................... c¤−V¡C....................................
10) −L¡e pju j−e q−u¢Rm Bl ¢ekÑ¡ae pqÉ Ll¡ k¡−µR e¡ ?
0-1 hvp−ll j−dÉ....................... 1-3 hvp−ll j−dÉ....................... 3-7 hvp−ll j−dÉ.......................
7 hR−ll Ef−l.......................
11) HC Evf£se h¡ ¢ekÑ¡a−el SeÉ Afl¡d£ −L ?
ü¡j£..................... n¡ö¢s..................... nÄös....................... eec.................... −chl ....................
Hl¡ fË−aÉ−LC....................... HR¡s¡J AeÉ¡eÉ−cl j−dÉ ................................................................................

329
12) HC lLj ¢ekÑ¡ae h¡ Evf£s−el L¡le ¢L?
fe c¡h£....................... jcÉf¡e....................... M¡f M¡Ju¡−e¡ Apñh.......................
AeÉ e¡l£l p¡−b pÇfLÑ....................... Hje ¢LR¥ k¡ S¡¢ee¡ .......................
p−¾cq....................... ¢hh¡¢qa S£h−e h¡h¡ - j¡l qÙ¹−rf.......................
¢hh¡−ql f§−hÑl −L¡e OVe¡ −N¡fe Ll¡....................... Ešl ¢c−a A¢eµR¥L.......................
13) Bf¢e ¢L f¤¢m−nl L¡−R −L¡e A¢i−k¡N L−l¢R−me ?
qyÉ¡ ....................... e¡ .......................
14) Bf¢e ¢L ¢hQ¡−ll SeÉ −L¡−VÑl c¡lÙÛ q−u¢R−me ?
qyÉ¡ ....................... e¡ .......................
15) ¢hQ¡l f¡Ju¡l SeÉ −L¡−VÑl à¡lÙÛ qJu¡l c¡¢uaÆ −L ¢e−u¢Rm ?
¢e−S....................... hå¥....................... −üµR¡−ph£ fË¢aù¡e......................
AeÉ¡eÉ .............................................................................................................
16) Bf¢e −L¡−VÑl j¡dÉ−j ¢hQ¡l f¡Ju¡l −Qø¡ L−le ¢e −Le ?
...........................................................................................................................................................................................
17) Bfe¡l pjpÉ¡l haÑj¡e AhÙÛ¡ ¢L ?
¢j−V −N−R....................... HM−e¡ Qm−R.......................
18) ¢hQ¡l ¢hi¡N HC j¡jm¡l ¢hQ¡l Ll−a La pju ¢e−u¢R−me ?
....................... j¡p / .......................hvpl
19) Bf¢e ¢L −L¡−VÑl ¢hQ¡−l h¡ ¢hQ¡−ll fÜ¢a−a p¿¹¥ø ?
qyÉ¡ ....................... e¡ .......................
20) Bf¢e ¢L Bfe¡l BCeS£¢hl L¡−S p¿¹¥ø ?
qyÉ¡....................... e¡ .......................
21) Bfe¡l pjpÉ¡l pj¡d¡e ¢L i¡−h q−m¡ ?
−L¡−VÑl j¡dÉ−j....................... −L¡−VÑl h¡C−l B−m¡Qe¡l j¡dÉ−j.......................
22) k¢c B−m¡Qe¡l j¡dÉ−j Bf¢e Bfe¡l pjpÉ¡ ¢jVj¡V L−l b¡−Le a¡q−m HlLj ¢jVj¡V
Ll¡l L¡le ¢L ?
h¡µR¡−cl SeÉ....................... f¢lh¡−ll SeÉ....................... p¡j¡¢SL pÇj¡−el SeÉ.......................
AbÑ°e¢aL Apq−k¡N£a¡l SeÉ .......................

330
23) k¢c Bf¢e B−m¡Qe¡ L−l ¢jVj¡V Ll−a l¡S£ e¡ q−u b¡−Le, a¡q−m a¡l L¡le ¢L ?
¢e−Sl pÇj¡e....................... ¢e−Sl BaÈ¢hnÄ¡p....................... h¡h¡-j¡l pq−k¡N£a¡ .......................
j¢qm¡ fË¢aù¡−el pq−k¡N£a¡ ....................... A¢jVj¡V−k¡NÉ jaf¡bÑLÉ.......................
24) HV¡ ¢L Bfe¡l p¿¹¡e / p¿¹¡e−cl j¡e¢pL AhÙÛ¡ h¡ hÉ¢š²−šÄl Eæ¢al −r−œ −L¡e i¡−h
fËi¡h −g−m−R ?
qyÉ¡ ....................... e¡.......................
25) HV¡ ¢L Bfe¡l j¡e¢pL h¡ n¡¢ll£L ü¡−ÙÛÉl Efl −L¡e fËi¡h −g−m−R ?
AhnÉC..................... AhnÉC e¡ .................... ¢LR¥V¡ ......................... h¤T−a f¡l¢R e¡ ......................
26) Bf¢e ¢L S¡−ee −j−u−cl f−r ¢L ¢L BCe B−R ?
qyÉ¡....................... e¡....................... qyÉ¡, ¢L¿¹¥ −L¡−VÑ −k−a A¢eµR¥L.......................
27) Bf¢e ¢L fZfËb¡ pÇf¢LÑa ¢L ¢L BCe B−R −p…¢m S¡−ee ?
qyÉ¡....................... e¡ ....................... ¢LR¥ ¢LR¥ S¡¢e .......................
28) fZ −cJu¡ - −eJu¡l AiÉ¡p pÇf−LÑ Bfe¡l ja¡ja ¢L ?
M¡l¡f Hhw hå Ll¡ E¢Qa....................., HV¡ EfL¡l£ ..............................
p¡j¡¢SL ¢euj, rja¡l j−dÉ b¡L−m HV¡ M¡l¡f eu .............................
29) −j−u−cl f−r −k pjÙ¹ BCe B−R −p pÇf−LÑ Bfe¡l ja¡ja ¢L?
BCe…¢m B−l¡ nš² qJu¡ E¢Qa......................., BCe…¢m ¢WLC B−R.......................
30) Bfe¡l ¢L j−e qu f−el SeÉ jªa¥É h¡ ü¡j£ J nÄös h¡s£l −m¡−Ll fZ pwœ²¡¿¹
hÉ¡f¡−l ¢eù¥l hÉhq¡l - HC ph BC−el d¡l¡ …¢m −j−u−cl à¡l¡ AfhÉhq¡l qJu¡l
pñ¡he¡ q−u−R ?
qyÉ¡....................... e¡ .......................

e¡j x
djÑ x
haÑj¡e ¢WL¡e¡ x
b¡e¡ x
−Sm¡ x
l¡SÉ x

331
 ANNEXURE – 2
Questionnaire

1) What is your present age ?

……. Years
2) What is your educational qualification ?
……………………………………………………..………
3) Do you have any source of income ?
(a) Yes …………. (b) No ………….
4) Do you have any children ?
(a) Yes …………. (b) No ………….
5) How long your marriage is/was subsisting ?
…………….. days/months/years.
6) What was the nature of your marriage ?
(a) Love marriage ………….. (b) Arranged marriage ……………
7) Whether your in-laws have demanded any dowry at the time of your marriage ?
(a) Yes …………. (b) No ………….
If yes, How many ? Son……………. Daughter ………………
8) Was/is there any harassment in your married life ?
(a) Yes …………. (b) No …………… (c) Sometimes ……………
9) What was the nature of harassment ?
(a) Mental abuse ….….. (b) Physical violence…….. (c) Both ……….
10) When the harassment became intolerable after marriage ?
(a) within 0-1 years …….. (b) within 1-3 years …..…..
(c) within 3-7 years …….. (d) 7 years above …………
11) Who is the Perpetrator / Perpetrators of violence ?
(a) Husband ..…… (b) Mother-in-law …..…. (c) Father-in-law …………
(d) Sister-in-law ……… (e) Brother-in-law……..... (f) All ……..….
(g) Others ……………………………………………………….…....

332
12) What is the reason of such violence ?
(a) Demand for Dowry …….. (b) Alcoholism ………
(c) Incompatibility ………….. (d) Extra-marital relationship …………
(e) Anything which I don’t know …………… (f) Suspect ………….
(g) Interference of Guardian in conjugal life ……………
(h) Suppression of material fact before marriage ………..
(i) Reluctant to answer ……………
13) Have you lodged any complain to the police ?
(a) Yes …………. (b) No ………….
14) Have you moved the Court for relief ?
(a) Yes …………. (b) No ………….
15) Who has taken the initiatives to move the Court for relief ?
(a) Own ……….. (b) Friends ….……
(c) Voluntary Organisation ………. (d) Any other ……….
16) What is the reason for not approaching the Court for relief ?
……………………………………………………………………………
17) What is the present situation of your problem ?
(a) Now settled …………. (b) Pending ………….
18) How much time was taken by the Court to give its verdict ?
(a) ………. Months (b) ………….. Years
19) Are you satisfied with the procedure of the Court and its verdict ?
(a) Yes …………. (b) No ………….
20) Are you satisfied with your Advocate’s Service ?
(a) Yes …………. (b) No ………….
21) How your problem was settled ?
(a) Through Court ………. (b) Outside Court through compromise …………
22) If your problem is settled through compromise, what is the reason for such
Compromise ?
(a) For children ………. (b) For lack of parental support ………
(c) For social prestige ………. (d) For lack of economic support ……….
23) If you don’t like to settle your problem through compromise, what is the
reason ?
(a) Self esteem …… (b) Self confidence ……. (c) Parental support ……..
(d) Women’s Organisation’s support ……… (e) irreconcilable difference …….

333
24) Has it affected the mental condition or in personality development of your
children ?
(a) Yes …………. (b) No ………….
25) Has it affected your mental / Physical health ?
(a) Definitely ………. (b) Definitely not ………
(c) To some extent ………. (d) Unable to asses ……….
26) Do you have any knowledge about the laws in favour of women ?
(a) Yes …………. (b) No ………….
(c) Yes, but reluctant to approach the Court ……………..
27) Do you have any knowledge about the Dowry related laws ?
(a) Yes …………. (b) No ………….
28) What is your opinion regarding practice of dowry ?
(a) Bad and should be stopped ……………..
(b) Social custom and if it is within one’s capacity, it is not bad ……………..
(c) It is helpful ……………….
29) What is your suggestion in respect of laws in favour of women ?
(a) It should be more stringent ………. (b) It is OK ………….
30) Do you think there is a possibility of misuse by the women relating to the
provisions of dowry deaths or cruelty by husband and in-laws ?
(a) Yes …………. (b) No ….……….

Name :
Religion :
Present Address :

Police Station :
District :
State :

334
 ANNEXURE – 3
¢p¢XEm

1) Bfe¡l haÑj¡e hup ........................... hvplz

2) Bfe¡l ¢nr¡Na −k¡NÉa¡ ............................................................. z
3) Bfe¡l AbÑ Ef¡SÑ−el −L¡e Evp −q¡m ............................................................. z
4) Bfe¡l −L¡−e¡ p¿¹¡e B−R...................... e¡C......................
b¡L−m, −R−m ..............Se, −j−u ..................Sez
5) Bfe¡l ¢hh¡q q−u−R ................................. ¢ce/j¡p/hvpl f§−hÑz
6) Bfe¡l ¢hh¡q ¢Rm,
i¡−m¡ h¡p¡l ¢hh¡q................................. pðå L−l ¢hh¡q.................................... z
7) Bfe¡l nÄölh¡s£ −b−L Bfe¡l ¢hh¡−ql pju −L¡e fZ c¡h£
L−l¢Rm......................, L−l¢e...................... z
8) ¢hh¡¢qa S£h−e Bfe¡−L −L¡e AaÉ¡Q¡l Ll¡ qu.................... Ll¡ qu e¡ ....................
LMeJ LMeJ Ll¡ qu ............................... z
9) ¢ekÑ¡ae −q¡a j¡e¢pL i¡−h ....................... n¡¢ll£L i¡−h ...............................
c¤ i¡−hC................................... z
10) ¢ekÑ¡ae Bl pqÉ Ll¡ k¡−µR e¡ j−e q−u¢Rm
0-1 hvp−ll j−dÉ....................... 1-3 hvp−ll j−dÉ....................... 3-7 hvp−ll j−dÉ.......................
7 hR−ll Ef−l....................... z
11) −hn£l i¡N pjuC AaÉ¡Q¡l Lla,
ü¡j£....................... n¡ö¢s....................... nÄös....................... eec....................... −chl .......................
Hl¡ fË−aÉ−LC ....................... AeÉ¡eÉl¡ ............................................................................................................. z
12) HC lLj ¢ekÑ¡ae h¡ Evf£s−el L¡le ¢Rm
fe c¡h£....................... jcÉf¡e....................... M¡f M¡Ju¡−e¡ Apñh.......................
AeÉ e¡l£l p¡−b pÇfLÑ....................... Hje ¢LR¥ k¡ S¡¢ee¡ .......................
p−¾cq....................... ¢hh¡¢qa S£h−e h¡h¡ - j¡l qÙ¹−rf.......................
¢hh¡−ql f§−hÑl −L¡e OVe¡ −N¡fe Ll¡....................... Ešl ¢c−a A¢eµR¥L....................... z

335
13) f¤¢m−nl L¡−R HhÉ¡f¡−l A¢i−k¡N Ll¡ q−u¢Rm ....................... Ll¡ qu¢e ....................... z
14) ¢hQ¡l f¡Ju¡l SeÉ −L¡−VÑ k¡Ju¡ q−u¢Rm....................... k¡Ju¡ qu¢e ....................... z
15) −L¡−VÑ ¢hQ¡l f¡Ju¡l SeÉ ja¡j−al c¡¢u−aÆ ¢Rm
¢e−S....................... hå¥....................... −üµR¡−ph£ fË¢aù¡e.......................
AeÉ¡eÉ................................................................................................................................................ z
16) −L¡−VÑl j¡dÉ−j ¢hQ¡l f¡Ju¡l −Qø¡ e¡ Ll¡l L¡le qm
........................................................................................................................................................................................... z
17) pjpÉ¡l haÑj¡e AhÙÛ¡ qm −k −pV¡, ¢j−V −N−R ....................... HM−e¡ Qm−R .......................
18) ¢hQ¡l ¢hi¡N j¡jm¡l ¢hQ¡l Ll−a fË¡u ....................... j¡p /........................ hvpl
pju ¢e−u¢R−me z
19) −L¡−VÑl ¢hQ¡−l h¡ ¢hQ¡−ll fÜ¢a−a Bf¢e p¿¹¥ø ....................... p¿¹¥ø e¡ ....................... z
20) BCeS£¢hl L¡−S Bf¢e p¿¹¥ø....................... p¿¹¥ø e¡ ....................... z
21) Bfe¡l pjpÉ¡l pj¡d¡e q−u−R
−L¡−VÑl j¡dÉ−j ....................... −L¡−VÑl h¡C−l B−m¡Qe¡l j¡dÉ−j ....................... z
22) B−m¡Qe¡l j¡dÉ−j Bfe¡l pjpÉ¡ ¢jVj¡V ¢jVj¡V Ll¡l L¡le qm
h¡µR¡−cl SeÉ....................... f¢lh¡−ll SeÉ....................... p¡j¡¢SL pÇj¡−el SeÉ.......................
AbÑ°e¢aL Apq−k¡N£a¡l SeÉ ....................... z
23) B−m¡Qe¡ L−l pjpÉ¡ ¢jVj¡V Ll−a l¡S£ e¡ b¡L¡l Bfe¡l L¡le qm
¢e−Sl pÇj¡e....................... ¢e−Sl BaÈ¢hnÄ¡p....................... h¡h¡-j¡l pq−k¡N£a¡ .......................
j¢qm¡ fË¢aù¡−el pq−k¡N£a¡ ....................... A¢jVj¡V−k¡NÉ jaf¡bÑLÉ....................... z
24) HV¡ Bfe¡l p¿¹¡−el j¡e¢pL AhÙÛ¡ h¡ hÉ¢š²−šÄl Eæ¢al −r−œ fËi¡h
−g−m−R ....................... −g−m¢e ....................... z
25) HV¡ Bfe¡l j¡e¢pL h¡ n¡¢ll£L ü¡−ÙÛÉl Efl fËi¡h −g−m−R .......................
fËi¡h −g−m¢e....................... ¢LR¥V¡ fËi¡h −g−m−R....................... h¤T−a f¡l¢R e¡ ....................... z
26) −j−u−cl f−r −k ph BCe B−R, a¡ Bfe¡l S¡e¡ .....................................
S¡e¡ eu .................................. S¡e¡ b¡L−mJ −L¡−VÑ −k−a Q¡e e¡ ................................ z
27) fZfËb¡ pÇf¢LÑa −k ph BCe B−R, a¡ Bfe¡l S¡e¡ .....................................
S¡e¡ eu ........................................ z

336
28) fZ −cJu¡ - −eJu¡l AiÉ¡p pÇf−LÑ Bfe¡l ja¡ja q−m¡
HV¡ M¡l¡f Hhw hå Ll¡ E¢Qa....................., HV¡ EfL¡l£ ..............................
p¡j¡¢SL ¢euj, rja¡l j−dÉ b¡L−m HV¡ M¡l¡f eu ............................. z
29) −j−u−cl f−r −k pjÙ¹ BCe B−R −pC BCe…¢m B−l¡ nš² qJu¡ E¢Qa .......................
BCe…¢m ¢WLC B−R ....................... z
30) f−el SeÉ jªa¥É h¡ ü¡j£ J nÄös h¡s£l −m¡−Ll fZ pwœ²¡¿¹ hÉ¡f¡−l ¢eù¥l hÉhq¡l -
HC ph BC−el d¡l¡ …¢m −j−u−cl à¡l¡ AfhÉhq¡l qJu¡l pñ¡he¡
B−R ...................... e¡C ...................... z

e¡j x
djÑ x
haÑj¡e ¢WL¡e¡ x

b¡e¡ x
−Sm¡ x
l¡SÉ x

337
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