CRIME AGAINST WOMEN AND ITS PREVENTIVE MEASURES
In India, women have been held in high esteem at all times, of women, the ancient law-giver, spoke in the most eloquent and reverential tones:
“A father excels ten Upadhayas in glory
But a mother excels a thousand fathers.”
Taking blessings and inspiration from her, whatever works a man undertakes, succeeds. I myself following this principle I never go for important assignment without taking blessings of my mother by touching her feet.
“The wife is half the man,
The best of friends,
The root of the three ends of life,
And of all that will help in the other world.”
Hillary Clinton observed that “It is past time for women to take their rightful place, side by side with men, in the rooms where the fates of peoples, where their children’s and grandchildren’s fates, are decided.
WOMEN IN VEDIC PERIOD:
During Vedic period women had exalted position and they enjoyed a fair amount of personal freedom and equality with men. Women studied in Gurukul and enjoyed equality in learning Vedas. In the matter of selecting the life partner in marriage, brides have exclusively rights of selecting their own consorts. No doubt, Vedic people practiced polygamy, though it was limited mostly to the aristocratic classes. A widow could marry again and did not require to give up wearing ornaments and shave her head. The Indus Valley civilization recorded the beginning of the cult of worshipping earth or goddess. Man used to regard woman as partners in managing the affairs during the Grihasta.
WOMEN IN POST VEDIC PERIOD:
In post Vedic period, from 1500 BC to 500 AD, the status of woman suffered a setback when various restrictions were put on woman’s rights and privileges by Manu. The education of women which was an accepted norm during Vedic period slowly began to be neglected. There are passages, in the Dharmashastras, which enunciate the ideal of womanhood as in essence meaning the negation of her personality. Yajnavalkya declared that ‘Women should follow the words of their husbands, this is their highest duty’. The epics of Ramayana and Mahabharata are full of incidents of wife’s devotion to her husband. The husband is indeed a Deity for the wife. Manu and other Simiritikaras ruled out the independence of women and have spoken about their perpetual dependence on men. Manu emphasized that ‘a woman’s father protects her in childhood, the husband in youth and her sons protect in old age, a woman is never fit for independence’.
WOMEN IN MEDIEVAL PERIOD:
From 500 AD to 1800 AD the existence of women was further degraded. Muslim invasion of India brought complete subordination of women and they were compelled to take purdah. The purdah restricted the movement of women outside home, it proved an impediment to their education and it also tended to make women more and more dependent on men. Along with purdah system, the curse of polygamy further aggravated the agony of a Hindu woman.
The Mughal period and the subsequent advent of the British period were marked for general practice of killing baby girls, condemnation of widow, polygamy and system of Devadasis in different parts of India. (Ref: Gender Equality: An Indian Perspective by Shivani Raswan Pathania).
Justice Mohd. Shamim, in his article Islam and Women stated that before the advent of Islam, the position of women in Arabia was not good. The Arabs never wanted to have a female child as the same was considered a burden and a liability. Women needed the males to defend themselves and were, therefore, a liability. They were merely a share in the inheritance and the booty. There is another aspect of the matter. A daughter on attaining puberty was required to be given away in marriage to someone. This was something disliked by the Arabs. They thus considered daughters as a drain on their resources and yet not getting anything in return. They thus found out a way of this impasse i.e. to bury a female child alive. The Holy Qur’an refers to this in the following verse:
“When if one of them received tidings of the birth of a female, his face remain darkened, he is wrathful inwardly.
He hideth himself from the folk because the evil of that whereof he hath had tidings (asking himself) shall he keep it in contempt, or bury it beneath the dust. Very evil is their decision.” (16:58-59).
The Arabs wanted to get rid of their daughters as soon as possible and when a girl attained her 5th or 6th year, she was either buried alive or hurdled down from a hilltop.
The Holy Qur’an cautioned them–
“And that ye slay not your children because of penury.” (6:152)
“We provide for you and for them.” (17:31)
The first step, which Islam took in ameliorating the lot of women was the abolition of this abominable custom. Why be afraid of the birth of a female? Holy Qur’an advised,
“All knew best of what she was delivered. The male is not as the female.” (Q3:36)
Besides, a woman is necessary for the perpetuation of human race. The Holy Qur’an further lays down,
“He created you from a single soul.” (Q4:1)
“The prophet while converting women to Islam took an undertaking from them that they would not kill their female children.” (Q60:12)
After the advent of Islam, a woman under Islam occupies a position of eminence. It grants her an equal status with man.
With the change of society, the status of women in India has been subject to many great changes over the past few millennia. From a largely unknown status in ancient times through the low points of the medieval period, to the promotion of equal rights by many reforms, the history of women in India has been eventful. In recent years there has been an alarming increase in atrocities and violence against women in the country. A woman in Indian society has been victim of humiliation, torture and exploitation. There are many episodes like rape, murder, dowry, burning, wife beating and discrimination in the socio-economic and educational fields. Indian society is predominated by men, hence women are a victim of male domination in the respective sphere of life; especially in economic life, for instance, over decision making on resources, on utilization of her earnings and on her body.
MEANING OF CRIME/VIOLENCE AGAINST WOMEN:
“The semantic meaning of ‘crime against women’ is direct or indirect physical or mental cruelty to women. Crimes which are ‘directed specially against women’ and in which ‘only women are victims’ are characterized as ‘Crime Against Women’.
It is equally important to clarify the concept of ‘Violence’ against women. Violence is also known as abuse and include any sort of physical aggression or misbehaviour. When violence is committed at home it becomes domestic violence and involves family members such as children, spouse, parents or servants. Domestic violence may involve different meanings such as hitting, kicking, biting, shoving, restraining, throwing objects. In broad terms, it includes threats, sexual abuse, emotional abuse, controlling or domineering, intimidation, stalking, passive/covert abuse and economic deprivation, rape, abduction, kidnapping, murder (all cases of criminal violence, dowry death, wife battering, sexual abuse, maltreatment of a widow and for an elderly woman (all cases of domestic violence) and eve-teasing, forcing wife/daughter-in-law to go for foeticide, forcing a young widow to commit sati, etc (all cases of social violence), are issues which affect a large section of society.
The United Nations defined “Violence against Women” in 1993 in Declaration on the Elimination of Violence against Women. It defines it as 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 private life.
Covenants of the United Nations and Laws against “crime against women” :
Violence against women is a problem worldwide, occurring, to a greater or lesser degree, in all regions, countries, societies and cultures, and affecting women irrespective of income, class, race or ethnicity. The many forms of violence to which women are subject include battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation, dowry-related violence and other traditional practices harmful to women, killings in the name of “honour”, non-spousal violence and related to exploitation, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women, forced prostitution and violence perpetrated or condoned by the state.
Knowledge about the forms, incidence, causes and consequences of gender-based violence against women, as well as measures to confront it, has greatly developed over the last twenty years. Some of the World Conferences on Women, resolution had been taken to ensure dignity, equality and security of women and also for eradication of violence against women in both public and private sphere are:-
(i) World Conferences on Women in Mexico, Copenhagen and Nairobi: 1975-1985
Initially the development of policy within the United Nations with regard to violence against women was concentrated on violence against women in the family. The World Plan of Action adopted by the first World Conference on Women in Mexico in 1975 did not refer explicitly to violence, but drew attention to the need for the family to ensure dignity, equality and security of each of its members. The 1980 Conference in Copenhagen, which marked the middle of the United Nations Decade for Women, adopted a resolution on “battered women and violence in the family” and referred to violence in the home in its final report.
(ii) At the 1985 Nairobi World Conference, and especially at its parallel non-governmental forum, however, violence against women truly emerged as a serious international concern. The Forward-looking Strategies adopted by the Conference linked the promotion and maintenance of peace to the eradication of violence against women in both the public and private spheres. The Conference included violence as a major obstacle to the achievement of development, equality and peace, the three objectives of the Decade.
A number of areas of special concern, including “abused women”, “women victims of trafficking and involuntary prostitution” and “women in detention and subject to penal law” were identified. Governments were urged to intensify efforts to establish or strengthen forms of assistance to victims of violence through the provision of shelter, support, legal and other services and to increase public awareness of violence against women as a societal problem.
(iii) General Assembly Resolution (1985)
In 1985, the General Assembly adopted the first resolution on domestic violence based on a recommendation of the Commission on the Status of Women to the Economic and Social Council and the outcome of the Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders.
(iV) Expert Group Meeting on Violence in the Family (1986)
The implementation of the 1985 resolution included the 1986 Expert Group Meeting on Violence in the Family, with special emphasis on its effects on women. This Meeting adopted concrete recommendations with regard to legal reform, police, prosecutor and health sector training, social and resource support for victims. It also made clear that domestic violence was a global phenomenon which was significantly underreported.
(v) Publication on Violence against Women in the Family (1989)
This publication described the manifold contexts and manifestations of violence against women; and also showed that violence may be tolerated and, indeed, condoned, by the community or the State. Economic, social and political developments as well as ethnic, religious, communal and political conflicts were seen to contribute to and/or exacerbate violence against women.
With a growing understanding of the link between gender and violence, the approach to the issue within the United Nations shifted. First, it became clear that violence in the family was not the only form of violence against women. Second, the gender-based nature of violence against women and its linkage to subordination, inequality between women and men, and discrimination, led to its categorization as a matter of human rights.
(vi) Recommendations by the Committee on the Elimination of Discrimination against Women (CEDAW)
CEDAW is the treaty body established to monitor the 1979 Convention on the Elimination of All Forms of Discrimination against Women. The Convention makes no explicit reference to violence against women, but does address trafficking in women, the exploitation of prostitution and sexual harassment in the workplace.
In a number of recommendations, the Committee made clear that gender-based violence falls within the meaning of discrimination against women. In 1989, the Committee adopted general recommendation 12 on violence against women which recommended that States include information in their reports to the Committee on the incidence of violence against women. In 1990, general recommendation 14 addressed female circumcision and other traditional practices harmful to the health of women.
In 1994, the Commission on Human Rights created the first gender-specific human rights mechanism and appointed Ms. Radhika Coomaraswamy of Sri Lanka as the first Special Rapporteur on violence against women. Her mandate is to seek and receive information on violence against women and to recommend measures to eliminate violence. In her reports she has covered, inter alia, military sexual slavery in wartime, rape in the community, domestic violence, trafficking and forced prostitution of women, women’ s reproductive rights. She has also embarked on missions to Member States of the United Nations to investigate and propose strategies to address gender-based violence against women.
(vii) Fourth World Conference on Women in Beijing, 1995.
The Beijing Declaration and Platform for Action identified 12 critical areas of concern which require urgent action to achieve the goal of gender equality.
Violence against women constitutes one of the critical areas of concern, as does women and armed conflict. Both these critical areas are interlinked with another critical area – human rights of women. The Platform adopts the definition of violence against women contained in the Declaration, but also highlights forms of violence against women not explicitly mentioned in that instrument, such as violations of the rights of women in situations of armed conflict, particularly murder, systematic rape, sexual slavery and forced pregnancy, forced sterilization and forced abortion, coercive or forced use of contraceptives, female infanticide and pre-natal sex-selection.
(viii) Beijing (from 5 - 9th June, 2000)
From 5-9 June 2000, the twenty-third special session of the General Assembly met to agree further actions and initiatives to implement the Beijing Declaration and Platform for Action. Amongst the achievements in implementation recognized by Governments was the fact that many forms of violence against women and girls, whether occurring in public or private life, had become the subject of national-level legislation, policies and programmes. Governments noted that States have an obligation to exercise due diligence to prevent, investigate and punish acts of violence, whether perpetrated by the State or private persons and provide protection for victims.
The conclusions of Beijing testify to the fact that gender-based violence against women is now viewed as a matter of serious concern by the international community, with many forms being regarded as serious violations of international legal standards. This represents a significant shift in attitude from that which existed within the United Nations when violence against women first emerged as a matter of international concern. This shift in approach has set the stage for the development of important international strategies to address the various forms of violence against women. It has also set the stage for legal and policy change at the domestic level.
Now Coming Back to India :
Independence brought a sea-change and the chief architect of the Constitution of India Dr. Ambedkar and all national leaders not only recognized the unequal social position of women but saw to it that women got equal rights.
(1) Constitutional Provisions for women are as under:
- Article 14 confers on men and women equal rights and opportunities in political, economic and social sphere.
- Article 15, prohibits, discrimination against any citizen on grounds of religion, race, caste, sex etc.
- Article 16, provides for equality of opportunities matters relating to employment or appointment to any office under the state.
- Article 39(a),(d), mentions policy of state securing equality for both men and women, the right to means of livelihood and equal pay for equal work for both men and women.
- Article 42, direct the State to make provision for ensuring just and humane conditions of works and maternity relief.
Acts enacted for women are as under:
- Factories Act 1948: Under this Act, a woman cannot be forced to work beyond 8 hours and prohibits employment of women except between 6 A.M. and 7 P.M.
- Maternity Benefit Act 1961: A woman is entitled 12 weeks maternity leave with full wages.
- The Dowry Prohibition Act, 1961: Under the provisions of this Act demand of dowry either before marriage, during marriage and or after the marriage is an offence.
- The Equal Remuneration Act of 1976: This act provides equal wages for equal work: It provides for the payment of equal wages to both men and women workers for the same work or work of similar nature. It also prohibits discrimination against women in the matter of recruitment.
- The Child Marriage Restrain Act of 1976: This act raises the age for marriage of a girl to 18 years from 15 years and that of a boy to 21 years.
- Indian Penal Code: Section 354 and 509 safeguards the interest of women.
- The Medical Termination of Pregnancy Act of 1971: The act safeguards women from unnecessary and compulsory abortions.
- Pre-natal Diagnostic Techniques (Regulation Prevention and Misuse) Act, 1994.
- Amendments to Criminal Law 1983, which provides for a punishment of 7 years in ordinary cases and 10 years for custodial rape cases.
- 73rd and 74th Constitutional Amendment Act reserved 1/3rd seats in Panchayat and Urban Local Bodies for women.
- The National Commission for Women Act, 1990: The Commission was set up in January, 1992 to review the Constitutional and legal safeguards for women.
- The Protection of Human Rights Act 1993:
- Protection of Women from Domestic Violence Act, 2005: This Act protects women from any act/conduct/omission/commission that harms, injures or potential to harm is to be considered as domestic violence. It protects the women from physical, sexual, emotional, verbal, psychological, economic abuse.
- The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013): On November 4, 2010, the Government introduced protection of Women Against Sexual Harassment at Workplace Bill 2010, which aims to protecting the women at workplace, not only to women employee but also to female clients, customer, students, research scholars in colleges and universities, patients in hospitals. The Bill was passed in Lok Sabha on 3.9.2012.
Immoral Traffic (Prevention) Act, 1956
Various new legislations have been brought and amendments have been made in existing laws with a view to handle these crimes effectively. These are broadly classified under two categories.
(1) The Crimes under the Indian Penal Code (IPC)
(i) Rape (Sec. 376 IPC)
(ii) Kidnapping & abduction for specified purposes (Sec.363-373 IPC)
(iii) Homicide for dowry, dowry deaths or their attempts (Sec.302/304-B IPC)
(iv) Torture - both mental and physical (Sec.498-A IPC)
(v) Assault on women with intent to outrage her modesty (Sec.354 IPC)
(vi) Insult to the modesty of women (Sec.509 IPC)
(vii) Importation of girl from foreign country (upto 21 years of age) (Sec.366-B IPC)
(2) The Crimes under Special & Local laws (SLL)
Although all laws are not gender specific, the provisions of law affecting women significantly have been reviewed periodically and amendments carried out to keep pace with the emerging requirements. The gender specific laws for which crime statistics are recorded throughout the country are –
(i) Immoral Traffic (Prevention) Act, 1956;
(ii) Dowry Prohibition Act, 1961;
(iii) Indecent Representation of Women (Prohibition) Act, 1986;
(iv) Commission of Sati Prevention Act, 1987;
(v) The Medical Termination of Pregnancy Act of 1971;
(vi) Pre-natal Diagnostic Techniques (Regulation Prevention and Misuse) Act, 1994;
(vii) Protection of Women from Domestic Violence Act, 2005;
(viii) The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
Total number of reported incidents and crime rate:
The crime rate for crimes committed against women has been calculated using only female population based on RGI’s Mid-year projected female population. ‘Crime rate’ of year 2012 is not comparable to previous years’ ‘crime rate’.
Reported incidents of crime for the year 2012 (Incidence – 2,44,270)
A total of 2,44,270 incidents of crime against women (both under IPC and SLL) were reported in the country during the year 2012 as compared to 2,28,650 in the year 2011 recording an increase of 6.4% during the year 2012. These crimes have continuously increased during 2008-2012 with 1,95,856 cases in the year 2008, 2,03,804 cases in 2009 and 2,13,585 cases in 2010 and 2,28,650 cases in 2011 and 2,44,270 cases in the year 2012. West Bengal with 7.5% share of country’s female population has accounted for nearly 12.7% of total crime against women by reporting 30,942 cases during the year 2012. Andhra Pradesh, accounting for nearly 7.3% of the country’s female population, has accounted for 11.5% of total crimes against women in the country by reporting 28,171 cases in the year 2012.
Crime rate (Crime rate – 41.7)
The rate of crime committed against women was 41.7 in 2012. Assam has reported the highest rate of crime against women at 89.5 during the year 2012 as compared to 41.7 crime rate at the national level.
The crime head-wise details of reported crimes during the year 2008 to year 2012 along with percentage variation are presented in above. The crime against women during the year 2012 has increased by 6.8% over the year 2011 and by 24.7% over the year 2008. The IPC component of crimes against women has accounted for 95.2% of total crimes and the rest 4.8% were SLL crimes against women.
The proportion of IPC crimes committed against women towards total IPC crimes has increased during last 5 years from 8.9% in the year 2008 to 10.2% during the year 2012.
A total of 3,37,922 incidence of crime against women both under IPC as well as SLL were reported in the country during the year 2014.
The intensity of change witnessed during recent years in the sphere of women and the law is not an accident or a sporadic occurrence. There is an increased awareness in society of the injustice done to women in the past. Worldwide movement for women’s rights has not left India untouched. The rights and position of women, in several of their facets, have received close attention at the hands of the Law Commission of India, whose contribution in this area has been of immense value. More than all, judicial intervention on various issues concerning women has been largely progressive and liberal.
Some of the decisions of the Apex Court regarding different offences against women are as follows:-
(I) Foeticide – infanticide – sex-ratio
Irrespective of demographic balance is adversely affected globally, due to receding sex-ratio because of foeticide and infanticide. Aghast with executive indifference coupled with peoples phobia for male issues, right thinking NGOs and individuals working against female foeticide and infanticide filed a Public Interest Litigation in the Supreme Court i.e. (a) Sehat & Masoom and Sabu George v. Union of India: (2001) 5 SCC 577. In that case, an interim order was issued by the Supreme Court on 2nd May 2001, directing the Central and the State governments to set up an Appropriate Authority and Advisory Board under the PNDT Act and that the State government has to file quarterly reports to show that steps have been taken to comply with the PNDT Act. There was an order given to the Central government to consider amending the PNDT Act. Consequently, the amendment was brought about in the PNDT Act and the ultra-sound and the pre-conception diagnostic techniques have been brought under one ambit and control. The ultra sound procedures are clarified in detail. It is also mandated the appointment of a State Policy making body. Inspite of the Centre’s pro-active stand, the judicial system, relying much on the necessary evidence, has not been able to nab the truant doctors and clients engaged in this nefarious exercise of continuing with pre-sex determination tests.
How law can catch the allegedly professional criminals parading in the garb of doctors and experts to allegedly help woman from anxiety who though conceived, wishes to get her female foetus aborted. Easily accessible quack doctors play havoc with the lives of the unborn and the consequent child and maternal mortality.
In (b) Dr. Jacob George v. State of Kerala: 1994 AIR SCW 2282, the High Court imposed sentence of 4 years imprisonment and a fine of Rs.5000/- to the accused a homeopath causing death while operating the deceased to abort. The Supreme Court reduced the sentence of imprisonment to one year and imposed a fine of Rs.1 lakh to the accused.
Justice Hansaria (as then he was) in (c) M.C. Mehta v. State of T.N. & Ors: (1996) 6 SCC 756 quote the observation of Mamie Gene Cole,
“I am the child.
All the world waits for my coming.
All the earth watches with interest to see what I shall become.
Civilization hangs in the balance,
For what I am, the world of tomorrow will be.
I am the child.
You hold in your hand my destiny.
You determine, largely, whether I shall succeed or fail,
Give me, I pray you, these things that make for happiness.
Train me, I beg you, that I may be a blessing to the world.”
(II) Child Marriage Restraint Act – Child Marriages
A major social evil sought to be prevented and curbed by law is child marriage. The Child Marriage Restraint Act is applicable to all Indians irrespective of their religion. Even then, child marriages are still prevalent in the States like Rajasthan, M.P., Bihar, U.P. and parts of Tamil Nadu and in many distant parts of the country. The Act is flagrantly violated. When the Saathins were appointed to prevent child marriages in the rural areas of Rajasthan, Bhanvari Devi was gang raped for attempting to stop solemnization of child marriages.
Justice V.R. Krishna Iyer observed that:
“The Republic of India has a vintage heritage from the days of the Buddha to the Gandhian era, of kindness sharing and carrying and viewing the child as the incarnation of divinity and futurity. November 14th of every year is observed in our country as Children’s Day. The humanist, compassionate emphasis in Article 51-A of the Constitution is a reassertion of the duty of every Indian citizen to behold the noble spark in every child, which is innocent, simple and free from inhibitions and greed to grab. It is true that every 6th human in the world is an Indian and every third Indian is a child. (Recent statistics surely exceed the UNICEF figure, 1990 of 160 million girl children in our country below the age of 16. Horror is the girl child’s autobiography.”
(III) Discrimination between women:
Discrimination in India is not merely against women i.e. there is discrimination between women and women. While all other sisters enjoy the fruits of legislative benefits, Muslim women are deprived even of reasonable maintenance on divorce. Even if pay back, it could normally not sustain her for life. Hence various attempts have been made by government and non-governmental organizations to extend the benefits under Section 125 of Cr.P.C.
The Apex Court in (a) Md. Ahmed Khan v. Shah Bhano Begum: AIR 1985 SC 1945, while dealing with the right of maintenance of Muslim divorced women under Section 125 of Criminal Procedure Code, held that if the divorced wife is able to maintain herself, the husband’s liability to provide maintenance ceases with the expiration of the period of iddat, but if she is unable to maintain herself she is entitled to take recourse to Section 125 of the Code. Various passages from the Holy Koran were relied upon, in coming to the conclusion that there is an obligation on Muslim husbands to provide for their divorced wives.
The judicial activism of the Hon’ble Supreme Court in Shah Bhano case was negative by the enactment of the Muslim Women (Protection of Right on Divorce) Act, 1986. Even then, the Apex Court in (b) Noor Saba Khatoon v. Mohd. Quasim: (1997) 6 SCC 233 through Hon’ble Dr. Justice Anand (as then he was) held that under Section 125 of the Cr.P.C. the maintenance of the children is obligatory on the father (irrespective of his religion) and as long as he is in position to do so, and that the children have no independent means of their own, it remains his absolute obligation to provide for them. For children of Muslim parents, there is nothing in Section 125 of the Cr.P.C. which exempts a Muslim father. The provisions are not affected by CI (b) of Section 3 (1) of the 1986 Act and indeed it would be unreasonable, unfair, inequitable and even preposterous to deny the benefit of Section 125 of the Cr.P.C. to the children only on the ground that they are born to Muslim parents.
The Apex Court in (a) Dr. N.G. Dastane v. Mrs. S. Dastane: (1975) 2 SCC 326, held that “the inquiry therefore has to be whether the conduct charges as cruelty is of such character as to cause in mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent. It is not necessary as under English law that the Cruelty must be of such a character as to cause ‘danger’ to life, limb or health or as to give rise to a reasonable apprehension of it is a higher requirement than a reasonable apprehension that it is harmful or injurious for one spouse to live with the other”.
(V) Bride burning/dowry – death:
The Apex Court in (a) Ram Kumar & Anr v. State of Haryana: 1999 Crl. L.J. 4629 (SC) held that deceased always complained to her parents about harassment and dowry demand of accused – performance of a ceremony of younger sister of deceased married in accused’s family about a month before incident – would not belie case of harassment – similarly non-production of letters written by deceased about ill-treatment – not sufficient to disprove prosecution case – FIR filed against accused cannot be falsified by allegations made by sister of deceased in her subsequent divorce petition – accused held were rightly convicted.
(VI) Women in custody:
The Apex Court in (a) R.D. Upadhyay v. State of Andhra Pradesh & Ors: (2007) 15 SCC 337 issued the guidelines regarding the facilities and care to be available to the pregnant woman prisoners and female prisoners in Jail. Some of the guidelines are:
(a) Before sending a pregnant woman to jail, the authorities must ensure that the jail has the basic minimum facilities for child delivery and for providing pre and post-natal care for the mother and the child.
(b) When a woman prisoner is found or is suspected to be pregnant at the time of her admission or thereafter, the lady Medical Officer shall report the fact to the Superintendent. As soon as possible, arrangement shall be made to get the prisoner medically examined at the female wing of the District Government Hospital. After ascertaining the necessary particulars, a report shall be sent to the Inspector General of Prisons, stating the date of admission, term of sentence, date of release, duration of pregnancy, possible date of delivery and so on.
(c) Gynaecological examination of female prisoner shall be performed in the District Government Hospital.
- Childbirth in prison:
(a) As far as possible and provided she has a suitable option, arrangements for temporary release/parole (or suspended sentence in case of minor and casual offender) should be made to enable an expectant prisoner to have her delivery outside the prison. Only exceptional cases constituting high security risk or cases of equivalent grave descriptions can be denied this facility.
(b) Births in prison, when they occur, shall be registered in the local birth registration office. But the fact that the child has been born in the prison shall not be recorded in the certificate of birth. Only the address of the locality shall be mentioned.
(c) As far as circumstances permit, all facilities for the naming rites of children born in prison shall be extended.
- Female prisoners and their children:
(a) Female prisoners shall be allowed to keep their children with them in jail till the children attain the age of six years.
(b) No female prisoner shall be allowed to keep a child who has completed the age of six years. Upon reaching the age of six years, the child shall be handed over to a suitable surrogate as per the wishes of the female prisoner or shall be sent to a suitable institution run by Social Welfare Department. In order to minimize undue hardships to both mother and child due to physical distance, as far as possible the child shall not be transferred to an institution outside the town or city where the prison is located.
- Food, clothing, medical care and shelter:
Children in jail shall be provided with adequate clothing suiting the local climatic requirement for which the State/UT Government shall lay down the scales.
Since exclusive breastfeeding on the demand of the baby day and night is recommended by various dietary guidelines, if for some reason, the mother cannot feed the baby, undiluted fresh milk can be given to the baby. Dilution is not recommended. The child should be provided with at least 600 ml of undiluted fresh milk over 24 hours if the breast milk is not available.
(VII) Statutory benefits in favour of women/judicial activism
The Apex Court in (a) Uttarakand Mahila Kalyana Parisad v. State of A.P.: 1993 Supp (1) SCC 480 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.
(VIII) Daughter’s Right vis a vis Son:
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 (a) Savitha v. Union of India: (1996) 2 SCC 280 and the Hon’ble Supreme Court, after a very apt quote – “son is a son until he gets a wife, a daughter is a daughter throughout her life”, held the said circular to be wholly unfair, gender biased and unreasonable.
(IX) “The right to privacy for women” was recognized by the Supreme Court and in the case of (c) State of Maharashtra v. Madhukar Narayan Mardikar: AIR 1991 SC 207 it was held that even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when one like. So also it is not open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate it against her wish. She is equally entitled to the protection of law. (Mr Justice Ahmadi’s Judgment).
(X) Decency & Dignity:
The right of women to be treated with decency was taken note of by the Supreme Court in (a) State of Punjab v. Baldev Singh: (1999) 6 SCC 172 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 prosecution case, but may also be found violative of the basic right of a woman to be treated with decency and proper dignity.
(XI) Equality Mother’s Right to Guardianship:
The Apex Court in (a) Geeta Hariharan & Anr v. Reserve Bank of India & Anr: (1999) 2 SCC 228 held that mother may be child’s guardian during father’s lifetime.
(XII) Marriage Bigamy and Protection against divorce:
The Apex Court in (a) Jorden Diengdeh v. S.S. Chopra: AIR 1985 SC 935 held that time had come for a complete reform of the law of marriage and to make a uniform law applicable to all people irrespective of religion or caste. The Apex Court again in (b) Smt. Sarla Mudgal v. Union of India: AIR 1995 SC 1531 held that conversion to Islam and marrying again would not by itself, dissolve the Hindu Marriage under the Act. The second marriage of Hindu husband after his conversion to Islam would, therefore, be in violation of the Act and as such void in terms of Section 494 IPC. Any Act which is in violation of mandatory provisions of law is per se void. And the apostate husband would be guilty of offence under Section 494, as all the four ingredients of Section 494, are satisfied in the case.
(XIII) Property Rights of Women/Widows:
Another important area of concern for the judiciary relates to property rights of women. The two important laws have transformed the Hindu women’s right to inherited family property. One is Hindu Women’s Right to Property Act 1937 and the Hindu Succession Act, 1956.
The Apex Court in (a) Gummalapura Taggina Matada Kotturu-swami v. Setra Veeravva & Ors: AIR 1959 SC 577 held that a Hindu widow who was wrongfully dispossessed filed a suit for 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.
In the famous (b) Mary Roy’s case [(1986) 2 SCC 209] 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.
(XIV) Unjust interrogation by Defence:
The Apex Court in (a) Domestic Working Women’s Forum v. Union of India: (1995) 1 SCC 14, it was observed that the treatment of the victims of sexual assault during their cross examination in the court regarding relevancy of facts some of the Defence Counsel continually question the Prosecutrix as to the details of rape incident not so much to bring the facts but to confuse the victim to point out inconsistencies in her statement. The cross examination is almost used as a means of humiliating the victim of the crime.
(XV) Trial in camera:
The Apex Court in (a) Chairman, Railway Board & Ors v. Mrs. Chandrima Das & Ors: AIR 2000 SC 988 held that violation of fundamental rights in this case of gang rape on Bangladeshi woman by railways employees in railway building does not suffer from infirmity of the victim being a foreign national. She can also be granted relief under public law for violation of fundamental rights on grounds of domestic jurisprudence based on Constitutional provisions and Human Rights Jurisprudence. Further the court held that Fundamental Rights are available to all the “Citizens” of the country but a few of them or also available to “person” e.g. Art.14 guarantees equality before law and equal protection of law within the territory of India is applicable to “person” which would also include the citizen and non-citizen, both.
(XVI) Protection of women from sexual harassment at Workplace:
The Apex Court in (a) Apparel Export Co. v. A.K. Chopra: AIR 1999 SC 625 held that 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.
It is amply evident that the empowerment of women is a multifaceted socio-political obligation. If the society has to move forward, it has to recast and redefine its norms of social behaviour and interaction. The divisive facet and the fragmented social scene of India, be it in terms of religion, caste, community or geographical placement as a tribal or hill area woman, needs to be shed a great deal of their past in terms of social practices in order to step-up their inherent human energy in the direction of, it not total, at least a near equitable homogeneity in the macro national terms. Surely, this is more of an awareness challenge rather than a matter of mere legal interpretation. Awareness has to be given through the most gigantic endeavour, for a country as varied and vast where the historical imprint of centuries after centuries has still been kept alive. This challenge can be met through a massive communication process.