CHAPTER–I

INTRODUCTION

“On marriage, the weakest, the stupidest the most insignificant man in
the world receives a licence to rape and beat”.1

-Virginia Woolf

Word “Women” has been described in Indian ancient Sanskrit saying

“Yatra nari pujante remante tatra devo” means ‘There live Gods where women
are respected. Men and women are two wheels of a carriage. Life of one without
the other is meaningless and incomplete. Women have been given the ascription
of mother Goddess and she is considered as the source of Shakti. As Swami
Vivekanand had said “That country and that nation that do not respect women
have never become great nor ever be in future”. According to the ancient law,
having divided body in to two parts, Lord (Brahma) became male of the one
half, and female by means of the other, Lord Shiva consists of a body of two
halves, one is male and other is female, i.e”.Ardhanreshwara”.

As women is the pillar of our society who plays a vital role to built the
nation. The status of Women in India has been subject to many great changes
over the past few millennia. From equal status with men in ancient times through
the low points of the medieval period, to the promotion of equal rights by many
reformers, the history of women in India has been eventful. In modern India,
women have adorned high offices in India including that of the President, Prime
minister, Speaker of the Lok Sabha and Leader of the Opposition. As of 2011,
the Speaker of the Lok Sabha and the Leader of the Opposition in Lok Sabha
(Lower House of the parliament) both are women. However, women in India
continue to face discrimination and other social challenges and are often victims
of abuse and violent crimes and, according to a global poll conducted by

1
Prem R. Bhardwaj, Gender Discrimination: The Politics of Women Empowerment, Anamika Publishers
& Distributors, New Delhi.

1
Thomson Reuters, India is the “fourth most dangerous country” in the world for
women, and the worst country for women among the G20 countries.2

Position of women in a society is the index of the development stage of

that country. It also shows the stage of civilization at which the civilization of
that country has raised. It has been truly said that if man is power women is
prowess. But if we look to the present day society the attitude of towards women
is predominantly chauvinistic. She is being treated as a commodity. It
continuously suffers under men’s bias and prejudices.

Condition of Women in Hindu Society:

The roots of Hindu living are in the Aryan society of earlier period. There
was family system in which the birth of a son was especially welcomed and his
presence was essential at important ceremonies. Man was free, brave, vigorous,
and fearless while women were passive part of society. There were concepts of
joint habitation, common eating place, joint property and honor to guest. In joint
habitation all members of the family live in one house where father, mother,
sons, son’s wives and their children live together. In common eating place there
was a joint kitchen for all members of the family. It was commented by
Brihaspti, that the people who had a joint kitchen their ancestors, Gods and
Brahmins are worshipped. In joint property the members of the family jointly
undertake the production and consumption and were joint owner of wealth of the
family because of the presence of joint ownership and co-operation among the
member it has been called a co- operative institution. But women were excluded
from property right. According to the concept of Headship the whole life of
members revolved around the head of the family, who was generally the eldest
male among the members. The head rules the family with love, affection and
persuasion. The headship was not given to the female candidate. In the concept
of honour to guest, Guests are treated as next to the God and they was already

2
Asha Rani, “The Changing Role and Legal Status of Women in India”, (Volume3, Issue1), IPEM Law
Academy, India, 2017.

2
welcomed and provided every facility without paying any charges by the host.
The guest may be male or female; there was no discrimination with female
guests. According to the concept of Religious and Spiritual involvement the
members of the family enjoyed an intimate religious and spiritual affinity, duties
were more important than rights. In Aryan societies woman was considered
more powerful than man and treated as Goddess of Shakti. She was considered
as Sahadharmacharini because woman along with man participated in all sphere
of life equally. Wife considered as Grihapatani because she controlled the
household. The wife reached the climax of her power and importance when she
became a mother a male child. The father’s property was generally inherited by
sons not by daughters. The goal of the women was pativratya dharma means
devotion to the husband. The purity and chastity of women was considered very
important in family.

(A) Condition of Indian Women in Vedic Period:

In the Vedic period the women enjoyed equal status with men, fair
amount of freedom, equality, full respect and honour. The Vedic period can be
termed as the period of feminine glory and also of masculine sagacity and
liberalism. Women participated in all sphere like man. She studied in Gurukals
and enjoyed equality in learning Vedas. The past women had access to Sanskrit
learning had produced many notable philosophies and debates. Spier portays of
ancient Indian womanhood thus:

“A thousand years B. C. Hindu women appear to have been as free as

Trojan dames or daughter of judge. Hyms in the Rig veda mentioned them with
respect and affection.……. Even in succeeding phase when Brahmins
contemplated the soul beneath the Himavat women attended the discourses…….
We found in one of Upanishads a king holding a solemn sacrifice and inviting
his chief guests to state their opinions on theology. Among these guests a learned
female named Gargi is conspicuous. A more pleasing instance of women’s
interest in holy themes is afforded byna conversation between Yagavalkya and

3
Maitreyi. In conversation, Maitreye choose ‘immorality’ in place of mere ‘rich’
and learns to ‘contemplate’ the soul alone since everything, is soul, the aim
being to merge all thought and feeling into the universal soul. Thus vedic women
are being epitomized by Gargi and Maitreyi”.3

Bader said that women were not excluded from ‘labouring’ for the
sacrifice as it was women who collected the Kusa, grass for the sacred
enclosure, and the plant from which some juice was extracted; they had the right
of offering sacrifices in their own names as well as by composing hymns. The
example of Vispala who participated in battles is cited to show that women had
been the recipients of the beneficence of the Gods.4 In higher societies girls were
allowed to undergo Upanayana rite .They were regarded as ‘better halves’. In the
Rigveda, the wife has been blessed to live as a queen in the house of her
husband. In the Mahabharta, the wife has been called the root of Dharma,
prosperity and enjoyment. There was absence of the’ purdha ‘system .Polygamy
being rare mainly confined to the ruling class. Women were educated they used
to participated wisely in the religious debates. Some of the renounced Vedic
women are Lopmvdra, Visvara, Gargi, Atreyi, Ghosa, Apala, indrani,and yami.
A social custom in the name of ‘Swayamvara’ gave full freedom to girls to
choose their husband means women have equal rights in selecting life partner. In
this period early marriages were not considered necessary for every girl or
woman. The women who remained unmarried and aged at the house of parents
were called ‘Amajur’. A widow could marry again. Later Vedic literature refers
to the remarriage of widows generally, to the husband brother. No social and
religious rites were complete without a woman who was designated as an
‘Ardangini’. Sita and Sawitri are still considered to be the ideal women. The
dowry system was prevalent only in rich families and only in the form of
movable gifts. Sati system was absent in this period. The Rigveda does not
mention anywhere the practice of the burning or burial of widow with their dead
husband.

3
Dr S. R. Mynani, Women & Law, Asia law house, (2008).
4
Ibid.

4
 “Manu: The parent of Hindu Jurisprudence, glorified ascetic widowhood.
Manu in plain terms, enjoins a widow to continue till death forgiving all injuries,
performing austere duties, avoiding every sensual pleasure and cheerful,
practicing the incomparable rules of virtu, which have been followed by such
women as were devoted to only one husband”.5

Additionally women represented the best example of conjugal love,

offering the supreme sacrifice of their lives as demonstration of their feelings for
their partners in the journey of life. This was to be an enduring legacy of Vedic
woman who performed sacrifices to the Gods by the side of her husband as equal
partner in offering of oblations. Wife and husband had joint ownership right of
the property and wife considered as intellectual companion of their husband, the
friend and loving helpers in the journey of life of their partners and in their
religious duties.

(B) Condition of Indian Women in Post Vedic Period:

In Post Vedic period women were pushed in to dark back ground and
various restrictions were put on women’s right. New brahminical laws enacted
those made women the property of man and commanded her to identity her life
with her husband’s. In family life chastity and purity of woman was very
important. Boder says, “The law commanded the woman to identify her life with
her husband’s she went ‘further’ and identified her death with his and she
accepted the traditional fate of women is death upon the funeral pyre when her
husband died for her’ “Ardent piety, spiritual and ascetic tenderness, complete
abnegation of herself, unlimited devotion to her family, a boundless need of
love, formed the character of such women”.6

The birth of a daughter was source of disaster for father. Women were
totally denied access to education. The women rights were ignored. Female duty
was only obedience to her husband. Women are held in worse condition and

5
Dr S. R. Mynani, Women & Law, Asia law house, (2008).
6
Ibid.

5
excluded from reading the sacred books like Veda’s, sacred songs and hymns,
means women were totally denied any access to education. The marriageable age
of girls was lowered to 9 or 10 years which not only gave a final below to any
effort at educating women but began the women sinister practice of pre–
marriages. They were excluded from paternal property. Generally the father’s
property inherited by sons not by daughter but when she was only child of her
parents she could inherit the property. Many traditions were put on the women
her duties were fixed in various statuses like mother, wife, sister, daughter and
dasi (female servant). A remarkable barbarity was prevalent in Hindustan that
the wife held unworthy to eat with her husband. The woman was brought in
slavery condition by fixing her duties. On the other hand women were remained
under the protection of father during the childhood, under the protection of
husband during the youth and under the protection of son during the old age.
Polygamy was well known but polyandry was rare. She was putted in mercy
condition when she became a mother of a female child. Within the related
groups marriage was strictly regulated.

(C) Condition of Indian Women in Medieval Period:

In medieval period the position of women was further degraded and they
were completely lost their glory. They began to live within their house started to
observe ‘purdha’. They became dependent on men folk. All morals and social
norms ignored their identity, integrity and status. All practices and evils were
inflicted on them in grab of customs, e. g. child marriage, polygamy, Sati system
and ban on widow’s marriage etc. Sati was a tradition evil according to this
practice the women themselves out of their free will committed suicide by
burning with her husband’s dead body. Sometimes their relatives abetted them to
become ‘Sati’ when they did not want widow to maintain in their family. There
were many principles in society relating to ‘Sati system’ that “every women who
burns herself with the dead body of her husband, will reside with him during a
like numbers of years in heaven’ secondly that, “In the same manner as a snake-

6
catcher drags a snake from his hole, so does a women who burns herself, draws
her husband out of the hell: and she afterwards resides with him in heaven, but in
the case of pregnancy and uncleanness, adolescence, the women was not allowed
to became a ‘Sati’.

“Rajput women have kshatriyani virtue such as the resolve to mount the
pyre to allow the men to go and fight without the fear of their womenfolk being
ravished. When the king was surrounded by alien armies, the Rani call all the
womenfolk together and perform’ Sati’ to prove that they are chaste while their
men are heroes. Women of the past were valorized in two separate ways; for
their spiritual potential and their role as ‘sahadhaminis’ (partners in religious
duties) in ancient times, and as heroic resisters to alien rulers who cheerful chose
death rather than dishonor”.7 There were the evil of dowry had become deep-
rooted especially in Rajasthan. Polygamy and the system of Devadasi, had
already spread. They had very limited right relating to inheritance, adoption,
maintenance and grand ship etc. The dowry was given as a token of love,
affection and honour, it’s magnitude was discretion of the bride’s parents
keeping in view their financial and social status and the thing of domestic utility
were generally given to establish the family of new young couple and another
reason was that, the jewellery, ornaments and cash etc. could be sold off in the
unexpected bad times. The dowry system was prevalent in all parts of India. In
common parlance ‘dowry’ means the goods jewelry and money being paid by
bride’s parents to bridegroom and the member of his family at the time of
marriage ‘Kanyanden’ which is essential part of during Hindu marriage was
being interrupted and bride’s parents are forced to fulfill unreasonable and huge
demand of dowry. Traditionally ‘kanyadan’ means no dan or gifts was
considered valid unless it was accompanied with ‘dakshina’, i.e. dowry in the
form of goods of house hold utility and cash. This practice gave birth social evil
named ‘Dowry system’ which was already spread in our society.

7
Dr S. R. Mynani, Women & Law, Asia law house, (2008).

7
(D) Condition of Indian Women in Pre-Independence Period:

The attitude, behavior and living pattern of Hindu society changed

drastically during the British regime due to education and western impact on
socio-cultural life of India. In this period many laws were enacted to eradicate
certain social evils. Now the condition of women has changed. They came out of
four wall of their house. They revolted against the ‘purdha system’. There were
major movements which affected the position of women. The Social Reform
Movement in nineteenth century and National Movements of the twentieth
century both raised the question of equal status of women. Ishwer Chandra
Vidyasagar, M.G. Ranade, Mahatama Phule, and Lokehitwadi Aurobindo raised
their voice against the unjust practices. Great saint Swami Dayanand fearless
raised voice against the discrimination with women. Rammohan Roy raised
voice against the ‘Sati system’. He argued that Hindu religion never accepted
Sati. His first pamphlet on Sati was published in 1818.Generally William
Bentinck issued regulation, prohibiting sati that had been enacted on Dec 4,
1829. The Hindu Widow Remarriage Act 1856 was by passed by the
Government of East India Company. This act was made to remove all legal
obligations to the Hindu’s widow and they were allowed to remarry. Swami
Vivekananda and Annie Besant believed in reviving the old Vedic society
presumed to be ideal for women. Gandhiji, too, vehemently criticized the
customs of child marriage prohibition of widow marriage, temple prostitution
and the custom of ‘Purdha’.

“Gandhiji had sensitivity to the problems of women, the weakest among

the weak. He sent a team of workers to study and report on the problems of the
women there. “How can any respect be complete without an account of women’s
problems?” He asked. The workers said that the women of Champaran were
very shy and would not meet them. Then Gandhi appointed Kasturba Gandhi
and Avantikabai Gokhale to visit Champaran and to report on the women’s
agony. At first, the women of Champaran would not meet them or even open

8
their doors. At sunset, Kasturba Gandhi knocked on one door and we are now
thirsty. Will you not offer us a glass of water? A door was then slightly opened,
a women’s hand appeared with a glass of water on her palm Kasturba drank the
water and said “Sister, we have seen your hand but we want to see women
behind this hand”. The women inside broke down she said “three women of our
household share only one unborn sari and one women has gone out with that
sari, how could the other open the doors for you and expose out half-naked
bodies with torn clothes?” Kasturba told the weeping woman “close, the door.
The doors of your heart are open”.8

National Liberation Movement was the beginning of new era and bright
future of India. They took part in fight for freedom of India. This movement not
only drew a large number of women to political activity but also generated
strength and confidence among women, which helped them to organize and fight
for their cause. The formation of the All Indian Women Conference in 1927 was
a crucial event in women’s march towards equality. Laxmi Bai, the Rani of
Jhansi, Ahilaya Bai, Chand bibi, Sarojani Naidu, Vijaya Laxmi Pandit and
Aurna Asaf Ali etc. were considered voice of the emergent Indian women. Many
legal provisions were made by legislature to improve the condition of women. In
1872 Indian Evidence Act passed which provides some special provision relating
to women like sec 113-A, which deals presumption as to abetment of suicide by
a married women and sec 113-B, presumption as to dowry death, sec 114-A
deals with the presumption as to absence of consent in certain prosecution for
rape, sec 122 deals with the privilege given to communication during marriage.
Indian Penal Code was passed 1860 by which crimes against married women
like demands for dowry, abetment of suicide, dowry death, kidnapping,
abduction, murder cruelty causing miscarriage, wrongful restraint, outraging the
modesty of a woman etc.

8
Lyn Norvell, “Gandhi and the Indian women's movement” the british library journal Vol. 23, no. 1
(spring 1997), pp. 12-27

9
(E) Condition of Indian Women after Independence:

After independence Indian women tried to regain their dignity and status.
The framers of the constitution were aware of the sociology of the problem of
emancipation of female sex. They realized that equality was important for the
development of the nation. Under the leadership of Jawaharlal Nehru, it was
directed to take a path of social change by guaranteeing formal equality,
economic justice and making the state a welfare state. The Constitution of India
guaranteed equality before low and equal protection of law to women which
opened a new chapter in history of women Now women are academically
progressive, socially active, economically wise and culturally smart. There is no
discrimination on the ground of sex. They are entitled to sue and to be sued
independently. ‘Sati Pratha’ and child marriage have not only been abolished but
they have been made punishable offences. Giving and taking of dowry has been
declared to be illegal. Laws relating to rare and dowry death have made more
strict and severe. Widows have given rights to remarry. They have been granted
right to give divorce. Polygamy has been abolished, which was previously a
privilege to men folks. Women have also given right to inherit and succeed as
mother, wife, widow, sister and daughter. They entitled to become guardians of
their minor children and also entitled to get maintenance allowance from
husband, sons ever daughter. They can adopt child, even the girls can be given
and taken in adoption. The definition of Stridhan has been expanded. Cruelty
towards women has also been added as an offence in I.P.C. They have been
given some preferential right regarding legal aid. Women have also been given
rights relating to maternity relief, minimum wages, compulsory insurance,
family- pension and in certain circumstances termination of pregnancy. As a
result of these provisions the concept of women playing a second role to men
was rejected. They started to take active part in social, political, educational,
economic and cultural activities. The women seem to be full of pride, confidence
and awareness regarding fast changing world of competition. This is gallant
reassertion of Indian womanhood.

10
 The All India Women’s Education Conference was held in Pune in 1927.
In 1929, the Child Marriage Restraint Act was passed, stipulating fourteen as the
minimum age of marriage for a girl through the efforts of Mohammad Ali
Jinnah. Though Mahatma Gandhi himself married at the age of thirteen, he later
urged people to boycott child marriages and called upon the young men to marry
the child widows. Women played an important part in India’s independence
struggle.9

However, the condition of women in India is still very pitiable. It is a

paradox that with advancement and progress in all lifestyles, women have come
to be regarded as inferior to man. They are not treated in the way they should be.
They are still uneducated and untrained. They are not only exploited and abused,
they also fall prey to violence. In spite of so many laws intended to safeguard the
interests of women, spread of women education and the increasing economic
independence, a large number of women are still the victims of cruelty.

Crime or cruelty against women in today’s society is partly a result of

gender relations that assumes men to be superior to women. Given the
subordinate status of women, much of gender cruelty is considered normal and
enjoys social sanction. Manifestations of such crime and cruelty include physical
aggression, such as blows of varying intensity, burns, attempted hanging, sexual
abuse and rape, psychological cruelty through insults, humiliation, coercion,
blackmail, economic or emotional threats, and control over speech and actions.
In extreme, but not unknown cases, death is the result. These expressions of
cruelty take place in a man-woman relationship within the family, state and
society.

The “fair sex” not getting a fair deal is now common in India. Be it
enactment of new social laws, creation of institutions for target groups and even
lip service about providing reservation for them in all elected bodies. Yet, there
is no better evidence of the state of women’s empowerment than the revealing

9
Ibid.

11
statistics of Crimes against Women (CAW), their handling, the profile of the
victims, the accused and the disposal of the cases.

Crime against women traditionally includes rape, kidnapping and

abduction, dowry death, torture, molestation, sexual harassment, importation of
girls, cases under the immoral Traffic (Prevention) Act, Sati Prevention Act,
Dowry Prohibition Act, Indecent Representation of Women (Prevention) Act. In
2007, a total of 1,35,771 such cases were reported. Thus Crime against women is
seadily on the rise in India.

Various studies have shown that women are vulnerable to various forms
of violent treatment for several reasons, all based on gender. Because of being
women, a woman is subject to rape, women circumcision/genita mutilation,
women infanticide and sex related crimes. This reason relates to society’s
construction of women sexuality and its role in social hierarchy. Because of her
relationship to a man, a woman is vulnerable to domestic cruelty, dowry murder,
sati. This reason relates to society’s concept of a woman as a property and
dependent of the male protector, father, husband, son, etc. Because of the social
group to which she belongs, in times of war, riots. Or ethnic, caste, or class
cruelty, a woman may be raped and brutalized as a means of humiliating the
community to which she belongs. This also relates to make perception of women
sexuality and women as the property of men.

In spite of the prosperity, globalization and education, we have failed to

eliminate the cruelty against the women. We, the Indians, worship woman as a
Godess, regard her as a mother, love her as a wife and she is most affectionate to
us as a daughter but still we commit cruelty against her as she is the most hated
among all the living things in this world. As per the statistics available, every 3rd
minute a case of cruelty are reported and every 29th minute a woman is raped.
One can argue that why this is happening? Are not their sufficient laws to
prevent such mishappenings ? We have all the resources available around this to
keep this phenomenon in check. There are laws to prevent cruelty against

12
woman, there is police to keep a check on these events and there are seminars
and symposiums to make recommendation. However, on ground level nothing
seems to be working.

Women in India now participate in all activities such as education, sports,

politics, media, art and culture, service sectors, science and technology, etc.
India Gandhi, who served as Prime Minister of India for an aggregate period of
fifteen years is the world’s longest serving woman Prime Minister. The
Constitution of India guarantees to all Indian women equality (Article 14), no
discrimination by the State (Article 15(1)), equality of opportunity (Article 16),
equal pay for equal work (Article 39(d)). In addition, it allows special provisions
to be made by the State in favour of women and children (Article 15(3)),
renounces practices derogatory to the dignity of women (Article 51(A) (e)), and
also allows for provisions to be made by the State for securing just and humane
conditions of work and for maternity relief. (Article 42).The feminist activism in
India picked up momentum during later 1970s. One of the first national level
issues that brought the women’s groups together was the Mathura rape case. The
acquittal of policemen accused of raping a young girl Mathura in a police
station, led to a wide-scale protests in 1979–1980. The protests were widely
covered in the national media, and forced the Government to amend the
Evidence Act, the Criminal Procedure Code and the Indian Penal Code and
introduce the category of custodial rape. Female activists united over issues such
as female infanticide, gender bias, women health, and female literacy. Since
alcoholism is often associated with violence against women in India, many
women groups launched anti-liquor campaigns in Andhra Pradesh, Himachal
Pradesh, Haryana, Orissa, Madhya Pradesh and other states. Many Indian
Muslim women have questioned the fundamental leaders’ interpretation of
women’s rights under the Shariat law and have criticized the triple talaq system.
In 1990s, grants from foreign donor agencies enabled the formation of new
women-oriented NGOs. Self-help groups and NGOs such as Self Employed
Women’s Association (SEWA) have played a major role in women’s rights in

13
India. Many women have emerged as leaders of local movements. For example,
Medha Patkar of the Narmada Bachao Andolan. The Government of India
declared 2001 as the Year of Women’s Empowerment (Swashakti). The
National Policy for the Empowerment of Women came was passed in 2001. In
2010 March 9, one day after International Women’s day, Rajyasabha passed
Women’s Reservation Bill, ensuring 33% reservation to women in Parliament
and state legislative bodies.10

As it explains, cruelty by men against women is a longstanding problem

and remains widespread. Until recently it was sanctioned by the law’s
indifference. While it may not be possible to envisage a complete and
comprehensive legal response to cruelty, either by the Commonwealth or the
State and Territories, the level of tolerance of it in different areas of the law
needs to be examined and addressed. A brief reading of judicial decisions across
a range of different legal issues shows that cruelty is quite often a part of the
background or context of a legal dispute but it is either ignored or treated as
irrelevant. This is not to say, however, that courts always ignore or miss the
cruelty in cases involving domestic relationships when the case is not one legally
classified as ‘about cruelty’. Indeed, the cases discussed below indicate that
courts can respond to male cruelty against women. However, it was obvious
from the response of women to the law that such judicial sensitivity to issues of
cruelty was by no means uniform.

As a result of the ways in which legal categories are structured, there is a

tendency to see violence as relevant only to the criminal or quasi-criminal law,
largely the responsibility of the States and Territories, and not to consider it as
having any relevance to a range of other non-criminal law issues. There may
well be tendency not to recognise it at all in other areas. There has been
considerable law reform effort in Australia around criminal law issues such as
rape and sexual assault, violence by men against women in the home, child

10
Asha Rani, “The Changing Role and Legal Status of Women in India”, (Volume3, Issue1), IPEM Law
Academy, India, 2017.

14
sexual abuse and homicide laws. The focus has been on male violence against
women in its clearest and most direct forms. This work, evident in the reports of
various task forces, committees and inquiries, including the National Committee
on Violence against Women, has been essential to make violence against women
a more prominent concern in traditional criminal law. There has been much less
attention to violence which arises less directly in the law and may take other
forms. For example, women are subjected to a variety of different injuries. They
may be harmed in their workplaces and the streets by sexual harassment. They
may be vilified or infantilized or sexualized in media representations. They may
be harmed in a seemingly infinite variety of forms of pornography. They may
also be injured through medical abuses, particularly in relation to their
reproductive capacities. As young women, they may be distinctively harmed by
the juvenile justice system. Abuses against women are perceived as a ‘by-
product’ of war. Yet male violence against women is routinely ignored outside
criminal or quasi-criminal areas.

The other offences which relate to women and have become wanton and
excessive are offences under Section 304-B and 498-A, the apex court has given
a broader meaning to the concept of cruelty enshrined under Section 498-A of
IPC. A case may not fall under Section 304-B when ingredients are not fulfilled
but when cruelty is otherwise proved, the trial judge is entitled to record a
conviction under Section 498-A. The ingredients which are necessary to be
satisfied for an offence under Section 304-B are as follows:

• The death of the woman is caused by any burns or bodily injuries.

• Occurs otherwise than under abnormal circumstances.

• And the aforesaid two factors spring within the seven years of the girl’s
marriage, and

• Soon after her death, she was subjected to cruelty and harassed by her
husband or his relatives; and

• This is in connection with the demand of dowry.

15
Objectives of Study:

The present study seeks to achieve the following objectives:

1. To study changing trends in the quantum of crimes committed against

women in India.

2. To trace the historical perspective of crime against women in ancient

societies.

3. To identify shifting trends in the nature of crimes committed against

women in India.

4. To examine the recent disturbing trends in crime against women.

5. To find out the various reasons for crime against women in our country.

6. To study the various kinds of crime against women in India and

punishment thereof.

7. To examine various statutes passed by the parliament for protection of

women.

8. To analyze judicial response regarding crime against women.

9. To examine the variations in the commissions of certain factors of crimes

committed against women with respect to spatial variations in India.

10. To suggest remedial measures for prevention and control of crime against
women in India.

Research Methodology:

In the proposed study, the researcher will adopt an analytical and

descriptive methodology. The present study is based on primary and secondary
data. In this study primary data can be collected from various source like as
Universal Declaration of Human Rights, 1948, Vienna Declaration And
Programme Of Action, 1993, Convention On The Elimination Of All Forms Of
Discrimination Against Women, 1979, Declaration On The Elimination Of

16
Violence Against Women 1993, Beijing Declaration And Platform For Action,
Fourth World Conference On Women, constitution of India, Indian penal Code
1860, Indian Personal Laws and many other conventions and statutes. For
collection of secondary data Articles, Periodicals, published books and lecture
on eminent jurists and international & national journals on feminine protection.
To collect the secondary data researcher has visit many libraries like as school of
international studies at Jawahar Lal Nehru University, Delhi; Indian Institute of
Law, Delhi; Indian Institute of International Law, Delhi; The Central Library of
University of Rajasthan, Jaipur. Help of internet and website of National
commissions on women and National commission of human rights also has been
taken. The problem of crime against women which has both theoretical and
empirical significance in modern times has not been extensively studied by
many sociologists and criminologists. Research in the field of violence/
atrocities/ crimes against women has to be focused on socio-psycho-legal
aspects. The social context in which violence is committed or atrocities are
inflicted on women and the psychological context in which the victim recovers
and adjusts have to be examined and assessed within a socio-legal perspective.
The present research presents not only the conceptual perspectives with which to
understand the problem but also analyses the socio-cultural and interpersonal
determinants of violence, shock, and recovery. The present study attempts, at the
very outset, to understand within the socio-legal perspective the factors or forces
that give rise to crime against women and the socio-legal measures to prevent it.
It seeks to examine the basis of differential practices of violence against women
among various social groups of contemporary urban as well as rural setting.

Research Hypothesis:

On the basis of objectives of the study as Stated above, the following

hypotheses have been derived:

(1) The status of women is not good in Indian society from ancient to present
period.

17
(2) There are significant changing trends in the quantum of crimes committed
against women in India.

(3) There are significant shifting trends in the nature of crimes perpetrated on
women in India.

(4) The Constitutional benefits given to Women, under the “Protective

discrimination” are not properly reaching them.

(5) There are inherent lacunas in Women protective substantive laws and
procedure.

(6) Educational development is a necessity for the protective and awareness

programmes.

Plan of the Study:

The researcher has divided the entire study in following chapters:-

Chapter-I Introduction.

Chapter-II Historical Background

Chapter-III Protection of Women under the Provision of IPC

Chapter-IV Special Laws relating to Protection of Women in India

Chapter-V Judicial Trends

Chapter-VI Conclusion and Suggestions

18
 CHAPTER–II
HISTORICAL BACKGROUND

According to studies, women enjoyed equal status and rights during the
early Vedic period. However, later (approximately 500 B.C.), the status of
women began to decline with the Smritis (esp. Manusmriti) and with the Islamic
invasion of Babar and the Mughal empire and later Christianity curtailing
women’s freedom and right. Although reformatory movements such as Jainism
allowed women to be admitted to the religious order, by and large, the women in
India faced confinement and restrictions. The practice of child marriages is
believed to have started from around sixth century.

Over 32000 murders, 19,000 rapes, 7500 dowry deaths and 36500
molestation cases are the violent crimes reported in India in 2006 against
women. There are many instances of crime especially against women go
unreported in India. These are figures released by the National Crime Records
Bureau recently. While Madhya Pradesh is worst off among the states, the
national capital New Delhi continues to hold on to its reputation of being the
most unsafe city in India. Delhi takes the top slot for crimes ranging from
murders and rapes to dowry deaths and abductions.

It reflects country’s law and order situation when its capital is a cauldron
of crime. Instead of leading the way in tackling crime, Delhi only seems to do
worse year after year. For instance while the national crime rate declined
negligibly by .02% in 2006; Delhi’s rate grew to 357.2 more than double the
national average of 167.7.11

Rape is the fastest frowning crime in the country today and as many as 18
women are assaulted in some form or the other every hour across India. Over the
last few months cases of rapes and assault have made it to the headlines with
alarming frequency. Mumbai watched with shame as an ugly mob attacked

11
Crime Against Women in India, posted on April, 2008 in Society at available in
https://www.youthkiawaaz.com

19
women on New Year’s Eve. In Latur a 14 year old was raped and killed by four
young men. In Konark four men were charged with dragging a woman out of a
bus and gang raping her. It is an ordeal simply to file a police report and the
investigations thereafter have been stories of apathy and downright humiliation
meted out to the victims. Where convicted, punishments have ranged from
capital punishments to a day in jail.12

Equally horrific are news reports of foreign tourists being sexually

assaulted. Recently an American was molested in Pushkar, a British journalist
raped in Goa, Canadian girls attacked in Kumarakom to list the few instances. It
looks like that India as a nation has ceased to know how to treat women as
human beings who have a right to dignity and safety. The crime against tourists
is against our culture of “atithi devo bhava’ Government has decided to meet and
discuss with the state government the safety of women tourists as a reaction
from the fear that such incidents will impact India’s image.

Despite the trauma women across all classes are reporting crimes such as
rape and assault and do not feel helpless or abandoned by family or society as
was the prevalent case before. Society is changing and government is forced to
take action as it has run out of excuses such as society’s mindset or class divide.
“I am the woman who holds up the sky
The rainbow runs through my eyes
The sun makes a path to my womb
My thoughts are in the shape of clouds
But my words are yet to come”.

One of those attempts to bring changes in status of women and relieve her
from her sufferings, pains and gloomy environment is given under chapter XX-A
of Indian Penal Code, 1860.

Chapter XX-A of Indian Penal Code, 1860, refers to ‘cruelty by husband

or relatives of husband’ and includes Section 498-A.

12
Ibid.

20
 Section 498-A states, that whoever being the husband or relative or the
husband of woman, subjects such woman to cruelty shall be punished with the
imprisonment for a term which may extend to three years and also be liable to
fine.

Explanation- For the purpose of this Section, “cruelty” means-

(a) Any wilful conduct which is of such 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 view to

coercing her or any person related to her meet any unlawful demand for any
person related to her to meet such demand.

The Section was enacted to combat the menace of dowry deaths. It was
introduced in the code by the Criminal Law amendment Act, 1983 (Act 46 of
1983). By the same Act Section 113-A has been added to the Indian Evidence
Act to raise presumption regarding abetment of suicide by married woman. The
main objective of Section 498-A of I.P.C. is to protect a woman who is being
harassed by her husband or relatives of husband.

Section 113-A of Indian Evidence Act, reads as follows:

Section 113-A, Presumption as to dowry death- When the question is

whether a person has committed the dowry death of a woman and it is shown
that soon before her death such woman has been subjected by such person to
cruelty or harassment for, or in connection with, any demand for dowry, the
Court shall presume that such person had caused the dowry death.

Explanation- For the purpose of this Section ‘dowry death’ shall have the
same meaning as in Section 304-B of the Indian Penal Code (45 of 1860).

The object for which Section 498A IPC was introduced is amply reflected
in the Statement of Objects and Reasons while enacting Criminal Law (Second
Amendment) Act No. 46 of 1983. As clearly stated therein the increase in

21
number of dowry deaths is a matter of serious concern. The extent of the evil has
been commented upon by the Joint Committee of the Houses to examine the
work of the Dowry Prohibition Act, 1961. In some of cases, cruelty of the
husband and the relatives of the husband which culminate in suicide by or
murder of the helpless woman concerned, which constitute only a small fraction
involving such cruelty. Therefore, it was proposed to amend IPC, the Code of
Criminal Procedure, 1973 and the Evidence Act suitably to deal effectively not
only with cases of dowry deaths but also cases of cruelty to married women by
the husband, in-law’s and relatives. The avowed object is to combat the menace
of dowry death and cruelty.

The act of harassment would amount to cruelty for the purpose of this
Section. Drinking and late coming habits of the husband coupled with beating
and demanding dowry have been taken to amount to cruelty within the meaning
of this Section, but this Section has been held not to include a husband who
merely drinks as a matter of routine and comes home late. In a case before
Supreme Court it was observed that this Section has given a new dimension to
the concept of cruelty for the Purposes of matrimonial remedies and that the type
of conduct described here would be relevant for proving cruelty.

It was held in Kaliyaperumal v. State of Tamil Nadu13, that cruelty is a

common essential in offences under both the Sections 304B and 498A of IPC.
The two Sections are not mutually inclusive but both are distinct offences and
persons acquitted under Section 304B for the offence of dowry death can be
convicted for an offence under Section 498A of IPC. The meaning of cruelty is
given in explanation to Section 498A. Section 304B does not contain its
meaning but the meaning of cruelty or harassment as given in Section 498-A
applies in Section 304-B as well. Under Section 498-A of IPC cruelty by itself
amounts to an offence whereas under Section 304-B the offence is of dowry
death and the death must have occurred during the course of seven years of
marriage. But no such period is mentioned in Section 498-A.

13
AIR 2003 SC 3828

22
 In the case of Inder Raj Malik v. Sumita Malik14, it was held that the
word ‘cruelty’ is defined in the explanation which inter alia says that harassment
of a woman with a view to coerce her or any related persons to meet any
unlawful demand for any property or any valuable security is cruelty.

Kinds of cruelty covered under this Section includes following:

(a) Cruelty by vexatious litigation

(b) Cruelty by deprivation and wasteful habits

(c) Cruelty by persistent demand

(d) Cruelty by extra-marital relations

(e) Harassment for non-dowry demand

(f) Cruelty by non-acceptance of baby girl

(g) Cruelty by false attacks on chastity

(h) Taking away children

The presumption of cruelty within the meaning of Section 113-A,

Evidence Act, 1872 also arose making the husband guilty of abetment of suicide
within the meaning of Section 306 where the husband had illicit relationship
with another woman and used to beat his wife making it a persistent cruelty
within the meaning of Explanation (a) of Section 498-A.

Constitution Validity of Section 498-A

In Inder Raj Malik v. Sumita Malik 15 , it was contended that this

Section is ultra vires Article 14 and Article 20 (2) of the Constitution. There is
the Dowry Prohibition act which also deals with similar types of cases;
therefore, both statutes together create a situation commonly known as double
jeopardy. But Delhi High Court negatives this contention and held that this
Section does not create situation for double jeopardy. Section 498-A is

14
1986 Cr LJ 1510
15
Ibid.

23
distinguishable from Section 4 of the Dowry Prohibition act because in the latter
mere demand of dowry is punishable and existence of element of cruelty is not
necessary, whereas Section 498-A deals with aggravated form of the offence. It
punishes such demands of property or valuable security from the wife or her
relatives as are coupled with cruelty to her. Hence a person can be prosecuted in
respect of both the offences punishable under Section 4 of the Dowry Prohibition
Act and this Section.

This Section gives wide discretion to the courts in the matters of

interpretation of the words occurring in the laws and also in matters of awarding
punishment. This provision is not ultra vires. It does not confer arbitrary powers
on courts.

In the leading case of Wazir Chand v. State of Haryana16, involving the

death by burning of a newly married woman, the circumstances did not establish
either murder or an abetted suicide and thus in-laws escaped the jaws of Section
300 and 306, but they were caught in the web of this newly enacted Section for
prevention of harassment for dowry. Not to speak of the things they are
persistently demanding from the girl’s side, the fact that a large number of
articles were taken by her father after her death from her matrimonial abode,
showed that there was pressure being exerted on-in laws and continued to be
exerted till death for more money and articles.

16
AIR 1989 SC 378

24
 CHAPTER–III
PROTECTION OF WOMEN UNDER THE PROVISION OF IPC

In Indian society, millions of women live in conditions of deprivation and

suppression. The violence against women is increasing day by day. Women’s are
worst victims of exploitation from centuries ago. This has been due to spread of
many social evils. There are many factors responsible behind exploitation of
women. No doubt, the Constitution of India ensures equal right for every citizen
irrespective of sex, colour, creed etc. But in reality, women are not enjoying
equal status position as compared to men in our country. In this context, several
measures have been formulated and implemented by the Government but no
desirable results have been achieved as required. The bedrock of our penal
system is the Indian penal code which is a combination of western scientific
outlook and oriental sensitivity. The code covers a vast range of anti-social
behaviour in relation to the state of society as it was enlisted more than a
hundred years ago. The IPC makes broad classification of crimes against
property person and state. 17 There are seven crimes in particular that can be
categorized as exercisable only on women; such as rape, kidnapping and
abduction, dowry death, torture and cruelty, molestation, sexual harassment and
importation of girls.

Eve-Teasing and molestation:

Eve teasing is a euphemism used for public sexual harassment or

molestation (often known as “street harassment”) of women by men, where the
name “Eve” alludes to the very first woman, according to the Biblical creation
story. Considered a problem related to delinquency in youth, it is a form of
sexual aggression that ranges in severity from sexually suggestive remarks,
brushing in public places and catcalls to groping. 18 Some non-governmental
organizations have suggested that the expression be replaced by a more

17
A. Sivamurthy, Indian Journal of Criminology, Volume 4, 1 January 1986, 17.
18
Khan, Shoeb, “Harassment in public places a routine for many”, The Times of India, Jaipur (15
February 2009).

25
appropriate term. According to them, considering the semantic roots of the term
in Indian English, Eve teasing refers to the temptress nature of Eve, placing
responsibility on the woman as a tease.

Sexual harassment by strangers, as with any type of harassment, has been

a notoriously difficult crime to prove, as perpetrators often devise discreet ways
to harass women, even though Eve teasing usually occurs in public spaces,
streets, and public transport. 19 The feminist publication Rethinking Violence
against Women referred to this behavior as a kind of “little rape”. 20 Some
guidebooks to the region warn female tourists to avoid attracting the attention of
21
these kinds of men by wearing conservative clothing. However, this
harassment is reported both by Indian women and by conservatively dressed
foreign women.22The problem first received public and media attention in the
1970s. In the following decades, more and more women started going to college
and working independently, meaning that they were often no longer
accompanied by a male escort as had been the norm in traditional society.

Although, “eve-teasing” has not been discussed anywhere in Indian Penal

Code, but after close-reading of Sections 294 and 354 of I.P.C., the substance of
eve-teasing can be brought under this heading. I.P.C. provides, “whoever, to the
annoyance of others-

(a) does any obscene act in a public place, or

(b) sings, recites or utters any obscene songs, ballad or words, in or near
any public place, shall be punished with imprisonment of either description for a
term which may extend to three months, or with fine, or with both.23

19
Faizal, Farah; Rajagopalan, Swarna, “In Public Spaces: Security in the Street and in the Chowk”,
Women, Security, South Asia: A Clearing in the Thicket, SAGE, 2005, p. 45, ISBN 0-7619-3387-5
20
Emerson Dobash, Rebecca; Dobash, Russell, Rethinking Violence against Women, SAGE, 1998, p.
58. ISBN 0-7619-1187-1
21
“India – Tips for Women Travelers”. Frommer’s. John Wiley & Sons, Inc. Archived from the original
on 7 June 2012.
22
Dutt, Nidhi, “Eve teasing in India: Assault or harassment by another name”, BBC (13 January 2012).
23
Section 294 of I.P.C.

26
 In this way, Section 294 of I.P.C. deals with an offence of causing
annoyance to others by doing obscene acts or singing, reciting or uttering
obscene song, ballad or words in or near any public place, is punishable with
imprisonment for three months or with fine or with both. The test of obscenity is
whether the tendency of the charge as obscenity is to deprive and corrupt those
whose minds are open to such immoral influences. The words uttered must be
capable of arousing sexually impure thoughts in the minds of that person hearing
those words against whom it has been uttered. “Annoyance to others” is an
essential ingredient and it must be established by the prosecution that annoyance
has been caused by the accused to others. The word, “others” includes women
also and the word, “public place” means a place where the public has a right to
go or have a right to enter or have a limited right of access.

The anti-social menace of eve-teasing is alarmingly on the increase, not

only in cities and towns, but also in the suburbs and even in rural areas. The vice
is no longer confined to the students alone, it is spreading like a contagious
disease even amongst the uneducated and the rustic people. The growth of this
menace is quite recent and though many remedies are being suggested, there is
hardly any indication that the evil is ever to be effectively checked or
successfully brought down. The incidents of eve-teasing mostly occur around
women’s colleges and schools, in buses and trains, at bus stands and railway
stations, in places of public entertainment, crowded fetes and fairs and within the
campus of educational institutions, open to boys and girls. In most cases, those
who come from educated, cultured, enlightened and affluent families, take part
in eve-teasing. Majority of boys have pinched, poked and touched girls on the
sly, and passed lewd remarks and sang obscene songs to embarrass them. Eve-
teasing may take the form of telephoning a woman and uttering obscene or
suggestive words. The Law Commission had suggested to the Ministry of Home
Affairs that a clause may be introduced in the Indian Penal Code under Section
294 to deal with the mischief of obscene telephone calls.24

24
S.K Ghosh – “Women in a changing society”, Ashish Pub. House, New Delhi, 1984 p. 81

27
Causes of Eve Teasing:

With the spread of education and multiplication of schools, colleges and

even universities, there are many unavoidable contacts between girls and boys in
educational institutions as well as outside. It is also true that a larger number of
women is being employed in several offices. Eve- teasing is a way of alleviate
sex tension by youngsters who avoid attack on women for fear of prison or
sentence.It is generally found that the evil is indulged in by the anti-social
elements on the roads, when the girls are on their way home or to offices or
educational institutions. It is usually seen that the teasers cut indecent jokes,
make some ugly gestures and utter certain humiliating and insulting words. It is
usually seen that majority of boys have pinched, poked and touched girls on the
sly, in buses and trains and in crowded fetes and fares to embarass them. The
teasers take the things very lightly and find a sort of fiendish delight in teasing
the girls. But these indulgences are quite sufficient to “insult the modesty of
women”. Bothering woman bywords and gestures to derive cruel pleasure at
their cost to say the least is offending the “modesty of women”.

Nature of offence:

The offence of eve-teasing is inherently such that it cannot be compared

with any other offence or crime of the Indian Penal Code. As a matter of fact,
there is no crime in the Indian Penal Code as eve-teasing. But this offence has
been practically covered by the crimes included in Indian Penal Code which runs
as “Whoever, intending to insult the modesty of any woman, utters any word,
makes any sound or gesture, or exhibits any object, intending that such word or
sound shall be heard, or that such gesture or object shall be seen, by such woman
or intrudes upon the privacy of suchwoman, shall be punished with simple
imprisonment for a term which may extend to one year, or with fine or with
both”.25

25
Section 509, Indian Penal Code.

28
 The Section shows the modes or the “modus operandi”by which eve-
teasing is indulged in. Sometimes the miscreant’s activities are not noticed by
the girls for whom they are meant; sometimes the girls ignore them as
unconcerned to them and try to allow the activities go totally unnoticed but the
psychology of the teasers is such that they are not satisfied unless their
indulgences are sufficiently attracted by the victims.

Section 354, I.P.C., can be invoked against any man “intending to outrage
or knowing it to be likely that he will thereby outrage her modesty”. The
punishment is imprisonment upto two years or fine or both. The offence is
cognizable.

A few years ago, the Government of Andhra Pradesh had issued order
that students identified in the act of eve-teasing should be expelled from the
school, college or university, as the case may be, for a period of one year. This
had the desired effect on students, who are mostly involved in such cases. It
needs careful examination if Section354, I.P.C., can be invoked effectively in
cases of eve-teasing; if not the introduction of a legislation “Eve Teasing
Prohibition Act” may be considered.

In Deepa v. Sub-Inspector of Police26, it has been held that Section 294

has a wide application to all such acts forming part of the substance of the
offence and addressed to the public at large, provided they cause annoyance.
Wherever a girl or woman feels annoyed by any obscene act, or song, or words,
she can take recourse under this Section. The offence committed under this
Section is cognisable, bailable, non-compoundable and triable by a Magistrate.

In Ram Das v. State of West Bengal 27 ,the accused was charged for
having committed an offence under Section 354 IPC. The accused boarded the
train at night where two women were seated accompanied by their male escorts.
The accused opened his trousers and was in his undergarments, when a heated

26
(1986) Cr LJ 1120 (Kerala).
27
AIR 1954 SC 711

29
exchange of words took place between him and the two other males on his attire.
In the quarrel, he pushed one of the women. It was held that no inference of an
action to outrage the modesty of the women could be drawn and therefore the
accused was not guilty. According to Hon’ble Justice Mudholkar, “the test of a
woman’s individual reaction to the act of the accused is not relevant…When any
act done to or in the presence of a woman is clearly suggestive of sex according
to the common notions of mankind that act must fall within the purview of this
Section”.28

Modesty is an attribute of female sex, which she possesses from the day
of her birth. There is no comprehensive test for determining that modesty of a
woman which has been outraged. Section 354 provides as follows:—

“Whoever assaults or uses criminal force to any woman, indicating to

outrage or knowing it to be likely that he will thereby outrage her modesty, shall
be punished with imprisonment of either description for a term which may
extend to two years, or with fine, or with both”.

Offence under Section 354, I.P.C. is of less gravity than the offence of
rape, and an indecent assault upon a woman is punished under this Section. A
person is guilty of indecent assault if he intentionally assaults the victim and
attempts to commit not just an assault but an indecent assault which right-
minded persons would think it indecent.

In State of Maharashtra v. Manohar29, a woman came out early in the

morning to get water from the village. The accused caught her hand and
forceably pulled her towards him to be taken to a nearby place. She resisted and
raised alarm. Her bangles were broken and she was injured. The accused was
found guilty of the offence of outraging her modesty under Section 354 I.P.C.
and was convicted.

28
State of Punjab v. Major Singh AIR 1967 SC 63
29
(1994) Cr LJ 2536 Bombay.

30
 In Peoples Union for Democratic Rights v. Police Commissioner,
Delhi Police Head Quarters30, some labourers, including a woman, were taken
to a police station for some work, and they worked there. When they demanded
their wages, they were beaten up. The woman labourer was stripped bare and
thrashed, the matter came up to Supreme Court in a writ petition under Article
32 of the Constitution. The Supreme Court held that offence under Section 354
I.P.C. was established with reference to the woman and she was awarded
compensation to be recovered from the salary of guilty officers.

In Rameshwar v. State 31 , caught hold of a woman with an axe and

inflicted a blow on him after that he was guilty under Section 354
In a case,2 the accused was alleged to have loosened the strings of petticoat of a
woman and was about to sit on her lap, when she cried for help and was rescued.
It was held that the offence against the accused would not be an attempt to
commit rape, but would be an offence under Section 354 of Indian Penal Code.

In this way, molestation would cover cases of utterances of obscenity,

lewd jokes and singing of vulgar songs, which would be covered under Section
294 of I.P.C. But in its aggravated form, where it is accompanied by gestures
indicating the threat of force or use of force, it would be covered under Section
354 of Indian Penal Code.

RAPE:

Rape destroys the entire psychology of a woman and pushes her into deep
emotional crisis. The physical scar may heal up, but the mental scar will always
remain. When a woman is ravished, what is inflicted is not merely physical
injury but the deep sense of some deathless shame. 32 The offender robs the
victim of the most valuable and priceless possession, that is dignity.

30
(1989) 4 SCC 730.
31
(1984) Cr LJ 786 (P&H)
32
Mohan Anna Chavan v. State of Maharashtra, 2008 (9) Scale 474, and Bantu v. State of Uttar Pradesh,
2008 (10) Scale 336.

31
 Justice Arijit Pasayat held that “while a murderer destroys the physical
frame of the victim, a rapist degrades and defiles the soul of a helpless female”.33

The Apex Court held that ‘rape’ as an offence which is violative of

the fundamental right of a person guaranteed under Article 21 of the
Constitution.34

It is only by her sheer will-power that she rehabilitates herself in the

society, which on coming to know of the rape, looks down upon her in derision
and contempt. By the very nature of the offence it is obnoxious act of the highest
order.35

In every society, women often suffer the violence and humiliation of rape.
‘Rape’ is the commission of unlawful sexual intercourse or unlawful sexual
intrusion. The very dignity of a woman is attacked in case of rape. Nothing is
more outrageous to the dignity of a woman than the invasion of her physical or
bodily privacy. Rape is the ultimate violation of the self.

Elements of ‘Rape’?

In order to understand the evolution of rape laws, one must first

understand what constitutes ‘rape’. The word ‘rape’ originates from the Latin
word ‘rapere’ which adumbrates ‘to seize’ or ‘take by force’. The Latin term for
an act of rape is raptus. ‘Rape’ literally means a forcible seizure; an intercourse
with a woman without her consent by force or fraud. It is an offence affecting
the human body. It is an outrage by all canons.36

Rape is defined as ‘sexual intercourse against another person’s will’. The

reasons behind rape have been scrutinized time and again; however,
overwhelmingly it is clear that rape is an act of violence and domination rather
than a sexual encounter.

33
Dinesh v. State of Rajasthan, (2006) 3 SCC 771.
34
Bodhisatwa v. Ms.Subdhra Chakroborty, (1996) 1 SCC 490.
35
Premiya alias Prem Prakash v. State of Rajasthan, AIR 2009 SC 351.
36
Phul Singhv. State of Haryaria, AIR 1980 SC 249.

32
 Historically, rape was defined as unlawful sexual intercourse with a
woman against her will. The essential elements of the crime were sexual
penetration, force and lack of consent. A woman who was raped, was expected
to have physically resisted to the utmost of her powers or the man would not be
convicted of rape.

In England and colonial America, ‘rape’ was defined as the carnal

knowledge of a woman obtained forcibly and against her will37 The Common
Law defined ‘carnal knowledge’ as the penetration of the female sex organ by
the male sex organ. In early English common law, rape was a misdemeanor
punishable by fine or imprisonment. A statute enacted in England in 1285, made
the crime of rape a capital felony. Similarly, in American colonies, rape was
exclusively a capital felony through the seventeenth and eighteenth centuries.
However, in the past century, the crime of rape was more frequently punished by
imprisonment.38

The offence of rape in its simplest term is “the ravishment” of a woman,

without her consent, by force, fear or fraud, or as ‘the carnal knowledge of a
woman by force against her will’. In the crime of rape, ‘carnal knowledge’
means the penetration of any slightest degree of the organ alleged to have been
carnally known by the male organ of generation. 39 In Halsbury’s Statutes of
England and Wales40, it is stated that even the slightest degree of penetration is
sufficient to prove sexual intercourse.41

Britannica Concise Encyclopedia defines ‘rape’ as an unlawful sexual

activity, usually sexual intercourse, carried out forcibly or under the threat of
injury and against the will of the victim. And, Columbia Encyclopedia defines
rape, in law, the crime of sexual intercourse without the consent of the victim,

37
Wayne R. LaFave, ‘Rape – Overview; Act and Mental State’, Substantive Criminal Law, 3rd Ed., pp.
752-756, (2000).
38
www.answers.com/‘Rape’
39
Stphen’s Criminal Law, 9th ed., p. 262.
40
Fourth Edition, Vol. 12.
41
State of Madhya Pradesh v. Munna Choubey, AIR 2005 SC 682.

33
often through force or threat of violence. In point of fact, the various definitions
of ‘rape’ range from the broad covering an individual to engage in any sexual
act, to the specific—forcing a woman to submit to sexual intercourse.

Every news of rape (which we get every day in our newspapers without
fail) makes me furious. The reason for my anger is that I know what
consequences now will follow. The girl will be emotionally destroyed. She will
be taken home by her parents, a crying hysterical wreck. The parents, then, will
grapple with the classic Indian dilemmas should or shouldn’t they report the
offence? Isn’t it better. Somebody within the family shall suggests to just hush
the whole matter up? After all, who will marry the girl if the word gets out that
she was raped?

If the parents somehow muster the courage and decide to go to the police,
then the victim’s real ordeal here from begins afresh. Unless the family is well
off or well connected, it will find the police station an unpleasant unfriendly.
Unsympathetic and non-cooperative place. The girl will feel humiliated,
abandoned and unprotected toot finding herself among the eyes staring and
jeering her.

Then the neighbors will get into the picture. Somebody would spread
rumor about the girl’s character and chastity. She was also no virgin, they will
say, we always notice her with boy-friends. Somebody will whisper if she wore
revealing clothes. A third one will speculate about the location of the incident
and if it took place in the evening, then people will wonder why she went there
alone after sun-down. If the offence has been committed in car or the like
vehicle, someone will question how one can commit rape in car.

While registering a first information report, a woman goes through

several verbal rapes because she is asked many uncomfortable questions and is
made to feel that somehow, in one or the other way, she must have invited it.
When the case comes up for judicial hearing, now once again she is made to
answer several irritating and humiliating questions, for example, how could four

34
men rape a woman within the confines of a moving car, didn’t you cry? etc. Our
police force is gender-biased and moreover, they are poorly equipped which
leads to a poor quality of investigation. Most of the rapists get away with their
crimes due to poor investigation which is one of the main causes for the high
rate of the offence.

If the police catch the rapists (not something about which you would be
convinced these days) then a long trial will run for years. Witnesses will
disappear. Some will be bought over and will become hostile. The police-
investigators (I.Os.) will have been transferred. The girl will be struggling to
forget all and begin a new life. The slow pace of trial will regularly cause her
embarrassment, irritation, resentment and shall remind her of humiliation. In the
end after several years, the rapist will probably get off -(the rate of conviction in
rape cases is shockingly low) once the verdict is out, he knight threaten the girl
to rape again and there will be nothing that anyone can do about it. Thus, is it
any wonder that I become furious on the news of rape?

Myths about Cause of Offence of Rape:

The classic myth, oft repeated, is that only the women of bad repute or
easy virtue are raped. This is a blatant lie and a stark example of aggressive male
chauvinism. The women incite the potential rapists by their tempting attire,
outlook and behaviour. This too is a morbid argument without any basis. Studies
reveal that a large percentage of rapes are not spontaneous but planned. The
rapists choose their victims based on accessibility and vulnerability rather than
attractiveness and the most vulnerable victims have been Dalits and Adivasis.
Since time immemorial, the influential classes have been using rape as a potent
weapon to suppress the weaker and down-trodden Sections of our society. This
is also a mentionable fact that in most of the rape cases, it is not the stranger but
an acquaintance who is found actively involved. Offenders, as per the latest
report of N.C.R.B., were known to the victims in 97.3% of rape cases (21566 out
of 22,172) committed in the country in 2010.42
42
National Crime Records Bureau (Ministry of I Home Affairs), Crime Report - 2010.

35
Gravity of Offence of Rape:-

 NCRB figures indicate that rape incidents, in last forty years, have
increased by 791.5% (from 2,487 in 1971 to 22,172 in 2010). 43 Rape
(total incidences in 2010- 22,172) has Shown a significant increase of
34.4% over 2000 and an increase by 360/o over the previous year
(21,397). A total of 2,13,585 incidents of crime against women were
reported in the country during 2010 as compared to 2,03,804 during 2009
recording an increase of 4.8% during 2010. These crimes have
continuously increased during 2006 -2010 with 1,64,765 cases in 2006,
1,85,312 cases in 2007, 1,95,856 cases in 2008, 2,03,804 cases in 2009
and 2,13,585 cases in 2010.44 Thus, offences against women in India are
constantly on the rise.

 In every 15 minutes a woman is molested, every 53 minutes a sexual

harassment occurs and every 29 minutes a rape takes place. Every 3
minutes a woman is assaulted for one or the other offence. Almost 1/4th of
the reported cases of rape involve the girls less than 16 yrs of age.
However, a vast majority of cases is never reported. Although the penalty
is severe, convictions are rare.45

 Every two minutes, someone in the U.S. is sexually assaulted.46

 1 out of every 6 American women has been the victim of an attempted

rape or completed rape in her lifetime. (14.8% completed rape: 2.8%
attempted rape) and 17.7 million American women have been victims of
attempted or completed rape.47

43
National Crime Records Bureau. Snapshots (1953 – 2010).
44
National Crime Records Bureau. Crime in India, Year 2010.
45
National Crime Records Bureau (Ministry of Home Affairs). Crime Clock - 2005.
46
U.S. Department of Justice. National Crime Victimization Survey, 200 2010.
47
National institute of Justice and Centers for Disease Control & Prevention. Prevalence, Incidence and
Consequences of Violence against Women Survey. 1998.

36
Why Rape Victim Prefers to Remain Silent?

As already stated, ‘rape’ is one of the most inhuman crimes against the
women. But, most often, no voice is raised against this crime. A woman who
becomes victim of such a heinous crime does not generally report it to the
police. Even, the victim’s family does not encourage her to file a report to the
police because of the following reasons:

 People generally hold the girl responsible.

 She and her family will get a bad name in the society.

 When she has been raped by someone who is known to her and her
family.

 When she has been raped by an influential or a powerful man.

 When she is unmarried.

Definition of Rape in Section 375 IPC:

The offence of ‘rape’ occurs in Chapter XVI of the Indian Penal Code,
1860, and ‘Rape’ is defined in Section 375 of the Code. Important, it is to note
that Sections 375 and 376 of the Indian Penal Code have been substantially
changed by the Criminal Law (Amendment) Act, 1983, and new Sections 376-A,
376-B, 376-C and 376-D were introduced in the Act.

The fact that sweeping changes were introduced in the Indian Penal Code
reflects the legislative intent to curb with iron hand the offence of rape which
affects the dignity of a woman. The question as to whether an act amounts to
rape or not, is not a matter of medical opinion, but a question of law.48

For the offence of rape, it must be proved that the accused had sexual
intercourse with the women in question, and the act did not fall under any of the
exceptions given in Section 375 of the Indian Penal Code, 1860.

48
Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204.

37
Section 375 IPC reads as:

A man is said to commit ‘rape’ who, except in the case hereinafter

excepted, has sexual intercourse with a woman under circumstances falling
under any of the six following descriptions:—

First—Againsther will.

Secondly—Withouther consent.

Thirdly—Withher consent, when her consent has been obtained by putting

her or any person in whom she is interested in fear of death or of hurt.

Fourthly—Withher consent, when the man knows that he is not her

husband, and that her consent is given because she believes that he is another
man to whom she is or believes herself to be lawfully married.

Fifthly—With her consent, when, at the time of giving such consent, by

reason of unsoundness of mind or intoxication or the administration by him
personally or through another of any stupefying or unwholesome substance, she
is unable to understand the nature and consequences of that to which she gives
consent.

Sixthly—Withor without her consent, when she is under sixteen years of

age.

Explanation—Penetration is sufficient to constitute the sexual intercourse

necessary to the offence of rape.

Exception—Sexualintercourse by a man with his own wife, the wife not

being under fifteen years of age, is not rape.

Essential Ingredients of ‘Rape’—Section 375 IPC

Section 375 of the Indian Penal Code requires that—

(1) there must be a sexual intercourse by a man with a woman, and

(2) sexual intercourse must be under circumstances falling under any of

the six clauses of Section375 (already mentioned above).

38
 In Parikh’s Textbook of Medical Jurisprudence and Technology, the
following passage is found :

‘Sexual intercourse—In law, this term is held to mean the slightest degree
of penetration of the vulva by the penis with or without emission of
semen. It is therefore quite possible to commit legally the offence of rape
without producing any injury to the genitals or leaving any seminal
stains.’

In Encyclopedia of Crime and Justice49, it is stated:

“..... even slightest penetration is sufficient and emission is unnecessary”.

Therefore, the absence of injuries on the private parts of a victim

especially a married lady cannot, ipso facto, lead to an inference that no rape has
been committed.

To constitute the offence of ‘rape’, it is not necessary that there must be

complete penetration of penis with emission of semen and rupture of hymen.50
Partial penetration of the penis within the labia major or the vulva or pudenda
with or without emission of semen or even an attempt at penetration is quite
sufficient for the purpose of the law.51 It is, therefore, quite possible to commit
legally the offence of rape without producing any injury to the genitals or
leaving any seminal stains. In such a case, the medical officer should mention
the negative facts in his report, but should not give his opinion that no rape had
been committed. Rape is crime and not a medical condition.

In this regard, it may be stated that rape is a legal term and not a diagnosis
to be made by the medical officer treating the victim.52 The only statement that
can be made by the medical officer is that there is evidence of recent sexual

49
Vol. 4, at p. 1356. Also see Sahun v. State of Haryana, 2009 Cri. LJ. 2035 at 2038.
50
Aman Kumar v. State of Haryana, AIR 2004 SC 1497. It is well settled that complete penetration is not
necessary to constitute an offence of rape.
51
State of Himachal Pradesh v. Amrish Kumar, 2009 Cri L.J. 2126 and State of West Bengal v. Suresh
Naskar alias Pandar, 2009 Cri L.J. 2370.
52
Rajendra Datta Zarekar v. State of Goa, AIR 2008 SC 572.

39
activity. Whether the rape has occurred or not is a legal conclusion, not a
medical one.53

The Supreme Court in the case of Sakshi v. Union of India 54 has

observed that Section 375 of the Indian penal Code uses the word ‘sexual
intercourse’ but it has not been defined. In the light of this, the Court examined
the question as to whether the word ‘sexual intercourse’ could include all forms
of penetration such as penile/vaginal penetration, penile/oral penetration,
penile/anal penetration, finger/vagina and finger/anal penetration and
object/vaginal penetration in the interpretation of the relevant Section.

However, the court confined itself to the dictionary meaning of the term
which means heterosexual intercourse of the penile/vaginal type alone.
Accordingly, the Supreme Court held in this case that the prosecution of the
accused for an offence under Section 376 of the Indian Penal Code on radically
enlarged meaning of Section 375 that included all forms of penetration, violates
the constitutional guarantee in Article 20(1) which ordains that no person shall
be convicted of any offence except for violation of a law in force at the time of
the commission of the act charged as an offence not be subjected to a penalty
greater than that which might have been inflicted under the law in force at the
time of the commission of the offence.

The Court took the view that the provision of Section 375 of the Indian
Penal Code cannot be altered by judicial interpretation to include all forms of
penetration such as penile/oral penetration, penile/anal penetration, finger/vagina
and finger/anal penetration and object/vaginal penetration and stated that: “An
exercise to alter the definition of rape, as contained in IPC by a process of
judicial interpretation, and that too when there is no ambiguity in the provisions
of the enactment, is bound to result in good deal of chaos and confusion, and
will not be in the interest of society at large”.55 In the instant case, the petitioners

53
Medical Jurisprudence and Technology (21st ed.) at p. 369.
54
AIR 2004 SC 3566.
55
Section 375 IPC

40
had argued that as per the modern feminist legal theory and jurisprudence, rape
is looked at as an experience of humiliation, degradation and violation rather
than an outdated notion of penile/vaginal penetration and therefore, the meaning
of rape should be broadly construed to include all forms of non-consensual
penetration.

Citing the Convention on the Elimination of All Forms of Elimination

Against Women, 1979, and the Convention on the Right of the Child, 1989, and
the judgments delivered by the International Tribunal for the Prosecution of
Persons Responsible for Serious Violations of International Humanitarian Law
committed in the Territory of the Finer Yugoslavia, they stressed the need for a
dynamic and updated interpretation of the law, keeping in view the purpose of
the statutory provision.

In the statute of International Tribunal, rape is considered as a crime

against humanity. The trial chamber in that case gave an expanded meaning to
the word ‘rape’ to include various kinds of penetration of the body of the
victim.56 The counter-affidavit by the government argued that all other cases of
penetration other than of the penile/vaginal type amounted to unnatural sexual
offences which are punishable under the Section 377 of the Indian Penal Code,
but could not be brought under Sections 375 and 376 of the IPC.

Citing the 156thReport of the Law Commission of India, which

recommended that the distinction between Sections 354, 375 and 377 be
maintained, and the doctrine of stare decisis, the court declined from collapsing
cases of unnatural sex under Section 377 into Section 375. The primacy given to
the penetration by the penis over all other forms of sexual assault in the offence
of rape ignores the sense of violation, abuse and humiliation experienced by the
woman in all these forms of sexual violence. This inherent reading of the law
may perhaps be linked to “conservative notions of chastity and fear of

56
State v. Deepak @ Deep Chand, Sessions Case No. 27/13, Special Fast Track, Rohini: Delhi,
Judgement on 4.02.2016.

41
pregnancy..... on the need to defend the legitimate rights of the father rather than
the woman’s integrity”.57

Further, the need to abide by the doctrine of stare decisis seems to have
been a critical factor that prevented the court from broadening its interpretation.
The Court was of the view that to enlarge the interpretation would be to violate
Article 20(1) of the Constitution. This narrow view of the Court seems to run
contrary to the decision in Lily Thomas v. Union of India.58

In 1995, the Supreme Court had interpreted Section 494 that a Hindu
husband who married again after conversion to Islam would be guilty of the
offence of bigamy. This had been challenged in Lily Thomas case as being in
violation of Article 20(1) of the Constitution. Rejecting this view, the court in
2000 declared that it was merely interpreting a provision that had been there
from the very inception of the legislation. Interpretation of a provision of law
relates back to the date of the law itself and, thus there would be no violation of
Article 20(1) of the Constitution. This view unfortunately was not followed in
the Sakshi case.59

In the case of a rape, the most desirable thing is that the victim should tell
about this, at the earliest available opportunity, someone who is trustworthy, for
example, mother, sister or any other close relative, friend, etc. Also inform, if
possible, the village head or Sarpanch or a social activist or an NGO.

Immediately thereafter, without losing any time, the victim along with
someone must file First Information Report (FIR) with the police station,because
any delay in such matters leads to wiping out of important evidence(s).

The FIR must include the information such as - nature of the offence,
name and identity of the victim, date and time of occurrence, name of the

57
Ved Kuman, ‘Gender Analysis of the Indian Penal Code, Engendering Law, Eastern Book Company,
Lucknow, 144 (1999).
58
AIR 2000 SC 1650.
59
Kamala Sankaran, Women and the Law, Annual Survey of Indian Law, Volume XL : 2004, Indian
Law Institute, New Delhi, p.577.

42
place/location where the crime was committed, name and detailed description of
accused person(s), detailed description of how the crime was committed and the
role of the accused person(s) and the weapons used by them, if any; details of the
name and address of witnesses, description of articles taken away by the
accused; description of articles left behind by the accused that could be used as
evidence, etc.

Thereupon, the police will send the victim for a medical examination. The
police shall also take victim’s clothes and put them in a sealed bag so that the
same can be sent for forensic tests. It is also desirable to obtain a copy of the FIR
from the police station. The Officer in charge of the police station is required
under Section 157 of the Criminal Procedure Code, 1973, to send a copy of the
FIR to the magistrate for taking cognizance of the offence and he is also required
to proceed to the spot and investigate himself or depute competent police
official. Here, it may be mentioned that the information about the offence should
be recorded immediately since the value of the FIR is weakened if it is not
recorded immediately after the occurrence of the crime.

A complaint can also be filed before the Magistrate within whose

jurisdiction the police station falls. If, per chance, there is no police station
nearby, the rape victim should get herself examined from an independent doctor.

However, in practice, in ‘rape cases’, law enforcement suffers very badly

because of several procedural defects, inter alia, police refuse to lodge FIR on
the crime; a copy of the FIR is not given to the complainant; FIR is lodged in a
very haphazard or incomplete manner; the statements of all witnesses are not
taken by the police; medical evidence is inadequate etc..

The Law Commission has very recently recommended that the age of
consent for sex should be raised from fifteen years to sixteen years for girls,
regardless of marriage. At present, the Indian Penal Code, that defines rape,
provides the following exception: ‘Sexual intercourse by a man with his wife,

43
the wife not being under fifteen years of age, is not rape’.60 The Commission
recommended that the exception be deleted and the girl’s consent for sex be
raised to sixteen. ‘This would ensure that the age of consent for sexual
intercourse for all girls, whether married or not, is 16, the Commission said in its
205threport on the Prohibition of Child Marriage Act, 2006, and other allied
laws. If the Government accepts the recommendation and accordingly Section
375 is amended, a man eloping with a girl below the age of 16 and marrying her
would face rape charges if he makes love to her with or without her consent.

In the matter of Md. Jainal Uddin alias Abedine v. State of

Tripura61the evidence of prosecutrix is that the accused, after closing the door,
undressed her and began to rub oil on her body and thereafter, pressed her mouth
and raped her. In the instant case, it was held by the Court that the mere fact that
no injury was found on the body and no torn clothes were found on the body of
the prosecutrix cannot be a ground for disbelieving the prosecution story.

In another case, Jiten Das v. State of West Bengal62, the Court stated
that the presence or absence of injury or mark of violence on the body of the
prosecutrix is not decisive. More or less in the same manner, the Supreme Court
in the case of Rajinder @ Raju v. State of Himachal Pradesh63stated that the
absence of injuries on the person of the prosecutrix does not lead to an inference
that she consented for sexual intercourse with the accused. In this case, the
young girl became victim of lust of the accused who was more than double of
her age and yielded to sexual intercourse against her will.

In Kapoor @ RajKapoorv. State64,where the appellant had, after lifting

the prosecutrix legs, committed the sexual act, the court stated that it is to be

60
Section 375 of the Indian Penal Code.
61
2009 Cri.L.J. 2572. The incidence of rape crimes committed against women under Section 376 IPC
during the year 2007 was 20,737 on all India basis. See Crime in India 2007, National Crime Records
Bureau, Ministry of Home Affairs, Government of India, New Delhi, p. 387. It may be stated that in the
Code of Criminal Procedure (Amendment) Act, 2008, a new proviso to Section 157 provides important
safeguards to the victims of rape.
62
2009 Cri.L.J. (NOC) 731 (Cal.)
63
JT 2009 (9) SC 9.
64
2009 (2) Crimes 297 (Chhat.)

44
borne in mind that the prosecutrix is married and even if she was forcibly made
to lie on the bund she was wearing saree, petticoat, blouse etc. Therefore, the
absence of any injuries either on the body or on her private parts would not
render the testimony of the prosecutrix unreliable. The prosecutrix, being a
married woman, was used to sexual intercourse and as such, in the above
situation particularly when the accused had overpowered her, no injury was
expected on her private parts. It is worth noting that the National Commission
for Women’s Bill, 2005, seeks to enlarge the definition of rape and make it more
comprehensive by including in it forced oral and anal sex. The Bill also seeks to
replace the word ‘rape’ with ‘sexual assault’. The Bill defines sexual assault as
that committed by a man on a woman.65

It is worth mentioning that in a case of kidnapping and rape the

conviction of the appellant can be recorded on the sole testimony of the victim if
the evidence of the victim is found to be reliable and trustworthy and worthy of
confidence and the evidence is corroborated in material particular then on such
evidence judgment of conviction can be recorded. However, the corroboration is
not rule of law but rule of prudence and so far the corroboration is concerned,
the victim was recovered from the house of the appellant and report of doctor
does not rule out the rape and the statement of victim recorded on her recovery
the very next day of her recovery, the victim in her statement has supported the
prosecution case regarding her kidnapping and kept in confinement in the house
and appellant having committed rape on her person. However, evidence of the
victim having been supported by the recovery of the victim from the house of
appellant by the investigating officer and the victim was examined by doctor
who found the physical feature of victim her age 15 years and vagina admits one
finger easily and the victim having supported the prosecution case in her
statement on the very next day under Section 164 of the Cr.P.C. which
corroborates her evidence about kidnapping and rape and the said statement
under Section 164 Cr.P.C. has been proved by Prosecution witness 7.66

65
Year of Endeavour 2005, National Commission for Women, p. 67.
66
Nand Kishore Singh v. The State of Bihar, Patna High Court, Criminal Appeal (SJ) No. 764 of 2012.

45
The Criminal Law (Amendment) Act, 2013

The death of an unnamed young woman “Nirbhaya”, a female

physiotherapy intern , following a brutal gang rape in last month of 2012 in
Delhi, India, prompted the world to recognize the degree of violence against
women and it has been noticed that sexual harassment is not only an Indian
problem but it’s a global one. Nirbhaya was brutally gang-raped and battered
before being thrown out of a moving bus in Delhi, India. Her death sparked
unprecedented anger among people who protested vehemently to convey a loud
“enough is enough” message. As a result of this, Indian democracy and
governance are being tested. It took a strong protest to remind us that women in
India are in grave danger domestically, at the workplace and on the streets. This
is not a female problem of India coming to terms with its masculinity. Women
throughout the world have been awarded lower status than men. In the last
couple of decades, violence against women, (gender-based violence) has
manifested as the most burning and obstinate social problem across regional,
social and cultural boundaries. Violence against women is construed as a grave
human rights violation and a pervasive public health problem that concerns all
sectors of society. An overwhelming majority of judgments from across the
world gives a singular message-’rapists deserve no sympathy’. Seldom in
legislative history has a law been amended so quickly, bowing to public
sentiment, as was done by the Govt. of India through an Ordinance on anti-rape
laws.The Criminal Law (Amendment) Ordinance, 2013 Criminal Law
(Amendment) Ordinance, 2013 is an Ordinance promulgated by the President of
India, Pranab Mukherjee, on 3 February 2013 which provides for amendment of
Indian Penal Code, Indian Evidence Act, and Code of Criminal Procedure, 1973
on laws related to sexual offences.

In December, 2012, Government of India had introduced the Bill67, in the

Lok Sabha. The Bill sought to redefine the offenses of rape and amend the penal

67
Criminal Law Amendment Bill, 2012

46
laws in line with recommendations of the Law Commission and the National
Commission for Women. Following the Delhi gang rape incidents, the
Government constituted a three member Committee headed by former chief
justice Verma to suggest amendments to the criminal laws to ensure speedier
justice and enhanced punishments in case of extreme sexual assault. Upon the
submission of the Verma Committee report, the government notified the
Criminal Law Amendment Ordinance on February 3, 2013. Background behind
introducing Criminal Law (Amendment) Ordinance, 2013 on 16 December 2012
a female physiotherapy intern was beaten and gang raped in Delhi. She died
from her injuries thirteen days later, despite receiving treatment in India and
Singapore. The incident generated international coverage and was condemned by
the United Nations Entity for Gender Equality and the Empowerment of
Women, who called on the Government of India and the Government of Delhi
“to do everything in their power to take up radical reforms, ensure justice and
reach out with robust public services to make women’s lives more safe and
secure”. Public protests took place in Delhi, where thousands of protesters
clashed with security forces. Similar protests took place in major cities
throughout the country. On 22 December 2012, a judicial committee headed by
J.S. Verma, a former Chief Justice of India, was appointed by the Central
government to submit a report, within 30 days, to suggest amendments to
criminal law to sternly deal with sexual assault cases. The Committee submitted
its report after 29 days on 23 January 2013, after considering 80,000 suggestions
received by them during the period from public in general and particularly
eminent jurists, legal professionals, NGOs, women’s groups and civil society.
The report indicated that failures on the part of the Government and Police were
the root cause behind crimes against women. The Cabinet Ministers on 1
February 2013 approved for bringing an ordinance, for giving effect to the
changes in law as suggested by the Verma Committee Report. According to
Minister of Law and Justice, Ashwani Kumar, 90 percent of the suggestions

47
given by the Verma Committee Report have been incorporated into the
Ordinance.

On the basis of recommendations of Justice Verma Committee,

Parliament enacted the criminal Law (Amendment) Act, 2013. 68 Following
amendments made by this act relating to offence of rape:

i). A new Section 166A is inserted which deals with public servant
disobeying direction under law Section l66-A (c) provides that where any
public servant fails to record any information given to him under Section
154 (I) of Cr.P.C., 1973 in relation to cognizable offence punishable
under Section 376, 376A, 376B, 376C, 376D and 376E shall be
punishable with rigorous imprisonment for a term not less than six
months but which may extend to two years and shall also be liable to
fine.69

ii). Section 166B is inserted which provides for punishment with

imprisonment up to one year and fine in case of non-treatment of victim
any incharge of hospital wherever public or private.70

iii). Under Section 375 of IPC clause (a) to (d) are inserted which defines four
acts by a man which amounts to rape. Previously six circumstances are
there for the commission of offence of rape. Now one more circumstance
is added that is when woman is unable to communicate consent.71

Further a new explanation is inserted, “Explanation 2” which

provides for the meaning of consent. Consent means an unequivocal
voluntary agreement. When women by words, gestures or any form of
verbal or communication, communicates, willingness to participate in
specific sexual act. It further provides that a woman who does not

68
Received the assent of President and published in Gazette of India on 2-4-2013.
69
Section 166A of Indian Panel Code, 1860.
70
Section 166B of Indian Panel Code, 1860.
71
Section 375 of Indian Panel Code, 1860.

48
 physically resist to the act penetration shall not by the reason only of that
fact, be regarded as consenting to sexual activity.72

A new exception is also inserted in Section 375 that is a medical

procedure or intervention shall not constitute rape.73

iv). Section 376 (I) provides for punishment for rape that is rigorous
of either description for a term which shall not be less than 7 years but
which may extend to imprisonment for life and also liable to fine.

Section 376 (2) provides for grave punishment that is rigorous

imprisonment not less than 10 years but which may extend to
imprisonment for life in case like rape committed by police officer within
limits of police station, staff of jail, remand house, by manager or staff of
hospital, by guardian or teacher.74

v). Section 376-A substituted by new Section which provides for

punishment of rigorous imprisonment not less than 20 years but may
extend to life imprisonment for causing death or resulting persistent
vegetative state of victim.75

vi). Section 376-B provides for punishment of imprisonment which shall not
be less than two years but which may extend to seven years and fine for
sexual intercourse by husband upon his wife during separation.76

vii). Section 376-C makes sexual intercourse by a person in authority a

punishable offence whit imprisonment which shall not be less than five
years but may extend to ten years.77

viii). Section 376-D provides for punishment in gang rape with rigorous
imprisonment which shall not be less than twenty years but which may
extend to life imprisonment.78

72
Ibid
73
Section 375 of Indian Panel Code, 1860.
74
Section 376 of Indian Panel Code, 1860.
75
Section 376-A of Indian Panel Code, 1860.
76
Section 376-B of Indian Panel Code, 1860.
77
Section 376-C of Indian Panel Code, 1860.
78
Section 376-D of Indian Panel Code, 1860.

49
ix). Section 376-E provides for punishment for repeat offenders under Section
376 or Section 376 A to D with imprisonment for remainder of person’s
natural life or with death.79

x). An amendment has been made under Section 154 (I) of Cr.P.C. which
provides that information given woman against whom an offence under
376, 376-A to 376-E has been committed then such information shall be
recorded by a woman police.80

xi). Amendment is also made under Section 161 of Cr. P. C. which provides
for that statement of a woman against whom an offence is committed
under Section 376, 376A to 376E shall be recorded by a woman police
officer.81

xii). A new Section is inserted that is Section 198 A that provides for
cognizance of offence publishable under Section 376B of IPC shall be
taken only upon prima facie satisfaction of facts which constitute offence
and upon the complaint filed by wife against husband.82

xiii). An amendment is made under Section 309 of Cr. P. C. when the inquiry
or trial relates to offence under Section 376 or Section 376A to 376D of
IPC as far as possible it be completed within two months from date of
filing of charge sheet.83

xiv). Section 357-C is inserted which makes it mandatory for all hospitals
whatever public or private to provide first aid to the victim of offence
covered under Section 376 or Section 376A to 376E IPC and shall
immediately inform the police of such incident.84

xv). Section 53-A is inserted in Indian Evidence Act 1872 which makes
evidence of character or previous sexual experience not relevant in

79
Section 376-D of Indian Panel Code, 1860.
80
Section 154 of Cr. P.C. 1973.
81
Section 161 of Cr. P.C. 1973.
82
Section 154 of Cr. P.C. 1973.
83
Section 309 of Cr. P.C. 1973.
84
Section 357-C of Cr. P.C. 1973.

50
 prosecution for an offence under Section 376 and Section 376A to
376E.85

xvi). Section 146 of Indian Evidence Act provides that in prosecution for an
offence under Section 376 or 376A to 376E of IPC, where the question of
consent is in issue, it shall not be permissible to adduce evidence or to put
questions in cross-examination of victim as to general immoral character
or previous sexual experience.86

A comparison of some of the key offences covered under the Bill, the
Committee report and the Criminal Law Amendment Ordinance, 2013 are
provided in the following table:-

Comparison of Criminal Law (Amendment) Bill, 2012; Verma Committee

Report on Amendment to Criminal Laws and the Criminal Law
(Amendment) Ordinance, 2013:

Issue Criminal Law Justice Verma Criminal Law

(Amendment) Bill, Committee (Amendment)
2012 Report,2012 Ordinance,2013
Disobedience Knowingly The Committee had Specifically
of law by a disobeying laws that recommended that penalizes failure to
public servant prohibit a public failure of a public record information
servant from servant to record in relation to
investigating a information in sexual offences
person in a certain relation to sexual including the use
manner is punishable offences should be of criminal forces
with imprisonment specifically to ‘outrage a
for one year and /or penalized under the woman’s modesty’
fine. Bill. and the new
offences of:
‘sexual assault’,

85
Section 53-A of Indian Evidence Act, 1872.
86
Section 146 of Indian Evidence Act, 1872.

51
 ‘sexual
harassment’,
‘Voyeurism’,
‘Stalking’, and
assault on a
woman to disrobe
her.
Meaning of (a)Un-consented Same as the Also includes the
sexual penetration of the provisions of the unconsented
assault(Rape) mouth, anus, Bill, excluding touching of the
Urethra, or Vagina penetration of the vagina, penis,
of a person with the mouth by an object anus, or breast of
penis or any other other than the penis. the person.
object; (b) Un-
consented
cunnilingus and
fellatio.
Requirement Not specified Absence of physical Recommendations
for proving resistance is not to accepted
physical be treated as
resistance consent
Age of 18 years 16 years 18 years
consent
Marital rape Is not an offence if Should be an Is not an offence if
the wife is over 16 offence regardless the wife is over 16
years of age of the age of the years of age
wife
Punishment 7 years to life 7 years to life 7 years to life
for sexual imprisonment and imprisonment and imprisonment and
assault or fine. compensation to fine.
rape victim to at least
meet medical
expenses
Sexual Punishable with 2 to Punishable with 7 Punishable with 2

52
assault/Rape seven years years to life to seven years
upon imprisonment imprisonment and imprisonment
judicially compensation to
separated victim to at least
wife meet medical
expenses.
Rape by Penalised as Specifically Accepts
armed custodial sexual penalises rape by recommendation
personnel armed personnel to specifically
within the area they penalise sexual
are deployed in. assault by armed
Armed personnel personnel within
should be penalised the area they are
with imprisonment deployed in.
for 7 to 10 years if
they knew that
sexual offences
were being
committed by their
subordinates. The
requirement for
sanction to
prosecute armed
personnel should be
removed in relation
to sexual offences.
Sexual assault This Bill has no Punishment 20 Punishment 20
resulting in specific provision years up to life years up to life
death or for this offence imprisonment In imprisonment or
persistent case of gang rape with death.
vegetative resulting in death or
state of the persistent
victim vegetative state
punishment should

53
 extend to life
imprisonment.
Gang sexual Punishable with Punishable with: (a) Recommendations
assault imprisonment for 10 10 years or up to accepted.
years or up to life. life; or (b) 20 years Reasonable
or up to life. compensation will
have to be paid to
the victim to meet
medical expenses
and rehabilitation
of the victim.
Sexual The Bill does not Existing provisions The Ordinance
Harassment have a specific of the IPC should increases the
provision for this be deleted. punishment for the
offence. Sexual Intentional touching existing offence to
harassment that of a sexual nature, maximum 5 years
involves use of without the person’s imprisonment. It
criminal force to consent should be also penalises the
outrage a woman’s penalised with 5 following acts
modesty is years rigorous with imprisonment
punishable with a imprisonment. Use for up to five
maximum of 2 years of words or gestures years: (a) physical
imprisonment under towards a person, or contact and
the IPC. Use of in his presence, advances
words or gestures to which create an involving
insult a woman’s unwelcome threat unwelcome and
modesty is of a sexual nature explicit sexual
punishable with one should be overtures; (b)
year’s imprisonment. punishable with demand or request
imprisonment for for sexual favours;
one year and/or (c) making
fine. sexually coloured
remarks; (d)
forcibly showing

54
 pornography; (e)
any other
unwelcome
physical, verbal or
non-verbal
conduct of sexual
nature.
Assault with The Bill does not Recommends Recommendations
the aim of have a specific penalising assault accepted.
disrobing a provision for this on a woman with
woman offence. the intention to
disrobe her in any
public place is
punishable with
imprisonment of 3
to 7 years and fine.
Voyeurism The Bill does not New S. 354B: New S. 354C:
have a specific Voyeurism - Voyeurism
provision for this Watching a woman Retained as in the
offence. engaging in a JVC.
private act when
she does not expect
to be observed.
Punishment On first
conviction,
punishable with
imprisonment of
either description
for 1yr to 3 yrs and
Fine. On
subsequent
conviction,
punishable with
imprisonment of

55
 either description
for 3yrs to 7 yrs and
Fine.
Stalking The Bill does not S. 354C(1): S.354D: Stalking
have a specific Stalking Following Retained as in the
provision for this or contacting or JVC.
offence. attempting to
contact a person or
monitoring the
person digitally or
spying on the
person in a manner,
which interferes
with the mental
peace of the person.
Punishment: 1 to 3
years imprisonment
and fine.
Repeat The Bill does not Person’s previously Recommendations
offenders have a specific convicted for sexual accepted. Second
provision for this assault will be offenders may also
offence. punishable with life be liable for death
imprisonment for penalty.
second offences.
Employing of - S. 370A: S. 370A:
a trafficked Employing of a Employing of a
person trafficked person - trafficked person.
Ss.(1)Knowingly Retained as in the
employing a JVC.
trafficked child.
Punishment: RI for
5 yrs to 7 yrs and
Fine. Ss.(2)
Knowingly

56
 employing a
trafficked adult.
Punishment: RI for
3 yrs to 5 yrs and
Fine
Section326A:Acid
attack:
Imprisonment not
less than ten years
but which may
extend to
imprisonment for
life and with fine
which may extend
to ten lakh rupees

Sources: Criminal Laws Amendment Bill, 2012; Report of the Committee

on Amendments to Criminal Laws, 2013; Criminal Laws Amendment
Ordinance, 2013; Indian Penal Code, 1860 as cited in PRS Legislative Research,
February, 16, 2013.

Distinction between ‘Rape’ and ‘Adultery’:

Rape is an offence against the human body affecting the person of a

woman, while adultery87 is an offence relating to marriage. The offence of rape
is committed on the woman against her will and without her consent, whereas
consent of woman is immaterial in case of adultery. In rape, the victim herself is
an aggrieved party, while in adultery, husband of the adulterated woman is an
aggrieved party. Rape may be committed on any woman whether married or
unmarried, whereas adultery is related to married women only.

87
Section 497 of the Indian Penal Code punishes the offence of adultery. The offence of adultery is
committed with a married woman without the consent or connivance of her husband. The main
ingredients of Section 497 IPC are: Such intercourse by a man with a woman who is or whom he knows
or has reason to believe to be the wife of another man; such sexual intercourse does not constitute an
offence of rape, and such sexual intercourse must be without the consent or connivance of the husband.

57
 Thus, following ingredients of adultery emerge out from the above
analysis:
 the accused must have had sexual intercourse with a woman;
 that woman must be a wife of another person;
 the accused must have known or had reason to believe that she is the wife
of another person;
 the sexual intercourse should not amount to rape; and
 the sexual intercourse must have been without the consent or connivance
of the husband.

Here, it may be stated that the proof of sexual intercourse rarely be direct;
therefore, the fact of adultery has to be inferred from the totality of the
circumstances that lead to it by fair inference and as a necessary conclusion.88

Non-Disclosure of Rape Victim’s Identity

The Indian Penal Code, 1860, relates to non-disclosure of identity of the

victim of certain offences etc. It provides that:

(1) Whoever prints or publishes the name or any matter which may make
known the identity of any person against whom an offence under Section 376,
Section 376A, Section 376B, Section 376C or Section 376D is alleged or found
to have been committed (hereafter in this Section referred to as the victim) shall
be punished with imprisonment of either description for a term which may
extend to two years and shall also be liable to fine.

(2) Nothing in sub-Section (1) extends to any printing or publication of

the name or any matter which may make known the identity of the victim if such
printing or publication is-

(a) by or under the order in writing of the officer-in-charge of the police

station or the police officer making the investigation into such
offence acting in good faith for the purposes of such investigation; or

88
Kasthuri v. Ramaswamy, 1979 Cri.L.J. 741 (Mad.), A.S. Pury v. K.L. Ahooja, AIR 1970 Del. 214, and
Sunil Kanto v. State of Bihar, 1964 (1) Cri.L.J. 250 (Pat.)

58
 (b) by, or with the authorization in writing of, the victim; or

(c) where the victim is dead or minor or of unsound mind, by, or with the
authorization in writing of, the next of kin of the victim:

Provided that no such authorization shall be given by the next of kin to

anybody other than the chairman or the secretary, by whatever name called, of
any recognized welfare institution or organization.89

Explanation: For the purposes of this sub-Section, “recognized welfare

institution or organization” means a social welfare institution or organization
recognized in this behalf by the Central or State Government.

(3) Whoever prints or publishes any matter in relation to any proceeding

before a court with respect to an offence referred to in sub-Section (1) without
the previous permission of such court shall be punished with imprisonment of
either description for a term which may extend to two years and shall also be
liable to fine.

Explanation: “The printing or publication of the judgment of any High

Court or the Supreme Court does not amount to an offence within the meaning
of this Section”.

True it is, the restriction does not relate to printing or publication of

judgment by High Court or Supreme Court. But keeping in view the social
object of preventing social victimization or ostracism of the victim of a sexual
offence for which Section 228-A has been enacted, it would be appropriate that
in the judgments, be it of Supreme Court, High Court or lower court, the name of
the victim should not be indicated.90

Despite above, the Orissa High Court has violated this norm and for this,
the Supreme Court has stated that: “We note with lot of concern that

89
Section 228A of the Indian Penal Code, 1860
90
State of Karnataka v. Puttaraja, AIR 2004 SC 433. Also see State of Punjab v. Ramdev Singh, AIR
2004 SC 1290; Om Prakash v. State of Uttar Pradesh, AIR 2006 SC 2214; Premiya alias Prem Prakash v.
State of Rajasthan, AIR 2009 SC 351, and S. Ramakrishna v. State, (2009) 1 SCC 133.

59
notwithstanding series of decisions by not only the Orissa High Court but also of
this Court that the name of victim should not be indicated in the judgment, the
High Court has done the reverse. This speaks volumes of judicial indiscipline”.91

It is worthy of note that Section 327(2) of the Criminal Procedure Code,

1973, also makes an identical provision that the inquiry into and trial of rape or
an offence under Section 376 of the Indian Penal Code shall be taken in camera.

On the issue on compensation it has been held that Considering the facts
and circumstances of these cases, we are of the view that the victims in the given
case should be paid a compensation of Rs. 5 lakhs each for rehabilitation by the
State Government. We, accordingly, direct the State Government to make
payment of Rs. 5 lakhs, in addition to various other benefits, within 4 weeks
from today. Further, we also wish to clarify that, according to Section 357B, the
compensation payable by the State Government under Section 357A shall be in
addition to the payment of fine to the victim under Section 326A or Section
376D of the IPC.92

Apex Court in Rameshbhai Chandubhai Rathod v. State of

Gujrat 93 reiterated the principles of law laid down in Bachan Singh’s case,
Mullah’s case. In the said case the Supreme Court considering the gravity of the
offence, behaviour of appellant and fear and concern such incident generate in
ordered society commuted the death sentence to life imprisonment directing that
life imprisonment would extend to the full life of the appellant subject to any
remission/commutation at the instance of Government for good and sufficient
reasons.94

91
State of Orissa v. Sukru Gouda, AIR 2009 SC 1019 at 1021.
92
Mohd.Haroon & Ors v. Union of India & Anr, SC, WRIT PETITION (CRIMINAL) NO. 155 OF
2013, Judgment on 26 March, 2014.
93
2011 (2) SCC 764
94
Ranjeet Yadav v. State Of U.P., ALLAHABAD HIGH COURT, Criminal Appeal No. 1038 of 2013,
Judgment on 12 September, 2016

60
Types of ‘Rape’

There are many types of ‘rape’; generally categorized by reference to the

situation in which it occurs, the set or characteristics of a victim, and/or the sex
or characteristics of the perpetrator. Different types of rapes include but are not
limited to, date rape (also known as ‘acquaintance rape’), forcible rape, statutory
rape, gang rape (or mass rape), marital rape (also cai1 ‘spousal rape’), custodial
rape, prison rape, war-time, etc.

(A) ‘Forcible’ Rape

Sexual intercourse carried out against a person’s will by the use or threat
of physical force, is referred to as ‘forcible rape’. Historically, a person could
only be charged for rape if force was used to subdue the victim. Most of the
countries retain the use of force as part of their definition of rape.

(B) ‘Date’ Rape

There are non-domestic rapes committed by someone who knows the

victim. The two persons may be former lovers, friends, or presently dating.95

Date rape is also known as ‘acquaintance rape’. A woman is more likely

to be raped by an acquaintance than by a stranger. Usually, the term ‘date rape or
acquaintance rape’ is applied when the sexual intercourse is non-consensual, but
does not involve physical coercion typically associated with the forcible rape.
But, to determine in ‘date or acquaintance rape’, as to whether an incident of
sexual intercourse was actually consensual or non-consensual is very difficult.

(C) ‘Spousal’ Rape

‘Spousal rape’ is also known as ‘Marital rape’; rape of a person’s spouse

is called spousal rape or marital rape. It is a non-consensual sexual assault in

95
‘Date rape’ (or ‘acquaintance rape is a vital issue in United States, more particularly in college
campuses. The victim of ‘date rape’ contends that she was raped by an individual with whom she was
acquainted. In such eventuality, the establishment of guilt becomes difficult, especially in cases where
the victim displays no physical resistance or evidence of violence and there is, thus, only the testimony of
the victim.

61
which the perpetrator is the victim’s spouse. Spousal rape is a crime in most
parts of the western countries.96

As a matter of fact, the English common law did not recognize rape
within a marriage as a crime. But, as a result of changing attitude about the
domestic violence, some countries have abandoned this doctrine and have begun
to allow prosecutions for marital rape especially when it is committed by force.97

(D) ‘Statutory’ Rape

Sexual intercourse with a person who, as per the law, has not reached the
age of consent is known as ‘statutory rape’. It may be mentioned here that the
age of consent for sexual intercourse varies depending on each country’s law,
but, normally, is not higher than eighteen years age.

Under ‘Statutory Rape’, the governments treat any sexual contact with
such a person as an offence even if he agrees to the sexual activity. The offence
is often based on a presumption that the persons under a certain age do not have
the capacity to give informed consent. The age at which the individual is
considered competent to give consent is called the age of consent.

Most countries also treat sexual intercourse as rape, in case the victim is
considered incapable of giving consent for a reason other than age, for example,
sexual intercourse with a person who is drugged, or asleep, or men tally retarded.

Sometimes, drugs are used by the rapists to render their victims

unconscious. Many rapes also happen in prison; such rapes are mostly
homosexual in nature since prisons are generally separated by sex. However, the
male prison-guards/supervisors may also be involved in rapes in female prisons.

(E)’War-time’ Rape

In war-time, rape is often used as means of psychological warfare in order

to humiliate the enemy and undermine their morale. Instances are galore where a

96
This has been appropriately discussed in a separate chapter of this book, under the Chapter ‘Spousal
Rape’.
97
In Canada, a spouse may be convicted of criminal sexual assault.

62
large number of soldiers have committed rapes on women and young girls
during war-time. Just for example, German women became pregnant after being
raped by Soviet soldiers in World War II.

(F) Custodial Rape

‘Custodial rape’ takes place when the rape is done by a man in whose
custody the woman is. Men who keep the women in custody are generally in a
strong and powerful position. If they misuse their position to sexually exploit
women, it is a very serious offence.

The expression ‘Custody’ implies guardianship. A ‘custody’ must be a

lawful custody. The same may arise within the provisions of the statute or actual
custody conferred by reason of an order of a Court of law or otherwise.

With regard to ‘custodial rape’, the Indian Penal Code, 1860, provides
that whoever:98

(a) being a police officer commits rape—

(i) within the limits of the police station to which he is appointed;

or

(ii) in the premises of any station house whether or not situated

in the police station to which he is appointed; or

(iii) on a woman in his custody or in the custody of a police officer

subordinate to him; or

(b) being, a public servant, takes advantage of his official position and
commits rape on a woman in his custody as such public servant or in
the custody of a public servant subordinate to him; or

(c) being on the management or on the staff of a jail, remand home or

other place of custody established by or under any law for the time
being in force or of a woman’s or children’s institution takes

98
Section 376(2) of the Indian Penal Code, 1860.

63
 advantage of his official position and commits rape on any inmate of
such jail, remand home, place or institution, and

(d) being, on the management or on the staff of a hospital, takes

advantage of his official position and commits rape on a woman in
that hospital, shall be punished with rigorous imprisonment for a term
which shall not be less than ten years but which may be for life and
shall also be liable to fine.

Provided that the court may, for adequate and special reasons to be
mentioned in the judgment, impose a sentence of imprisonment of either
description for a term of less than ten years.

Two alternative custodial punishments are provided in the penal code -

one is imprisonment for life and the other is imprisonment of not less than ten
years. The latter punishment is the minimum, subject of course to the proviso
which authorizes lesser sentence for adequate and special reasons.99

Thus, if a student and a teacher fall in love with each other the same
would not mean that the teacher has taken undue advantage of his official
position. Even then, there must be an inducement or seduction by a public
servant so far as the woman in his custody is concerned.100

Further, sexual intercourse for the purpose of attracting Section 376B

must take place at a place where the woman was in custody. In Omkar Prasad
Verma v. State of Madhya Pradesh101, the prosecutrix categorically admitted
that the sexual intercourse did not take place within the precincts of the school
but outside the school and as such, the conviction of accused was improper.

In Ram Kumar v. State of Himachal Pradesh102,on the fateful night,

the prosecutrix and her husband were sleeping in the house of Chuhar Singh
where around midnight they were rudely awakened by the two appellants; one of

99
Bhupinder Sharma v. State of Himachal Pradesh, AIR 2003 SC 4684 at 4687.
100
Omkar Prasad Verma v. State of Madhya Pradesh, AIR 2007 SC 1381.
101
AIR 2007 SC 1381.
102
AIR 1995 SC 1965.

64
whom i.e. Nain Singh was an Investigating Head Constable and the other Ram
Kumar just a constable posted at Rajgarh Police Station. On the ostensible but
false plea that a wireless message had been received from Chandigarh indicating
the prosecutrix to be an abducted girl, she and Khem Raj were forcibly taken by
the appellants to the police station. There they were kept in separate rooms. In
one of the rooms, Nain Singh first brutally hit her, then molested her, and finally
raped her. Her shrieks were heard in the room where Khem Raj was confined.
But Ram Kumar, the appellant, who was guarding Khem Raj, did not react to it.
His conduct right from the act of his forcibly taking separately the prosecutrix by
arm to the Police Station, her separate confinement in a room, Nain Singh
misusing his position and having forcibly raped her and Ram Kumar - appellant
not doing anything about it while keeping a watch over the husband, reflected a
mind of consistency in aiding and abetting the commission of crime of rape. The
prosecutrix is not only a reliable witness but her word directed against the
appellants bears a ring of truth, for no explanation whatsoever as to why the
appellants have been accused of the offence, has been rendered. Her word is
corroborated by the evidence of not only her husband, Khem Raj, but her
brother-in-law Chuhar Singh. Besides this evidence, the Court had the evidence
of local people who had seen the prosecutrix being led to the Police Station and
that of Dr. Rama Nand, who was approached by Chuhar Singh to seek help
because of the illegal confinement of the prosecutrix and her husband. The entire
conspectus was viewed by the High Court in vivid detail to come to the
conclusion that the appellants were guilty of the crime. In this case the Supreme
Court observed that the appellant, Ram Kumar’s conduct and consistency were
towards facilitating that crime as otherwise he would have reacted on the hearing
of the shrieks of the hapless prosecutrix who was a young girl aged about 19 at
that time. His turning deaf ears to her cries was the finale on his conduct and he
must be assumed to have had this end in mind when he dragged the prosecutrix
forcibly to the Police Station and thus upheld sentence of seven years’ rigorous
imprisonment to Nain Singh and two years’ rigorous imprisonment to Ram
Singh, appellant.

65
(G)Rape of a Pregnant Woman:

Section 376(2) of the Indian Penal Code, 1860, makes some special case
of rape punishable with more stringent punishment. For rape of a pregnant
woman, reads asfollows:

“Whoever

(a) being a police officer commits rape—

(i) within the limits of the police station to which he is

appointed; or

(ii) in the premises of any station house whether or not situated in

the police station to which he is appointed; or

(iii) on a woman in his custody or in the custody of a police

officer subordinate to him; or

(b) being a public servant, takes advantage of his official position and
commits rape on a woman in his custody as such public servant or
in the custody of a public servant subordinate to him; or

(c) being on the management or on the staff of a jail, remand home or

other place of custody established by or under any law for the time
being in force or of a woman’s or children’s institution takes
advantage of his official position and commits rape on any inmate
of such jail, remand home, place or institution; or

(d) being on the management or on the staff of a hospital, takes

advantage of his official position and commits rape on a woman in
that hospital; or

(e) commits rape on a woman knowing her to be pregnant; or

(f) commits rape on a woman when she is under twelve years of age;
or

(g) commits gang rape, shall be punished with rigorous imprisonment

for a term which shall not be less than ten years but which may be

66
 for life and shall also be liable to fine: Provided that the Court
may, for adequate and special reasons to be mentioned in the
judgment, impose a sentence of imprisonment of either description
for a term of less than ten years.

Explanation-1 :- Where a woman is raped by one or more in a

group of persons acting in furtherance of their common intention,
each of the persons shall be deemed to have committed gang rape
within the meaning of this sub-Section.

Explanation-2 :- “Women’s or children’s institution” means an

institution, whether called an orphanage or a home for neglected
woman or children or a widows’ home or by any other name,
which is established and maintained for the reception and care of
woman or children.

Explanation-3 :- “Hospital” means the precincts of the hospital and

includes the precincts of any institution for the reception and
treatment of persons during convalescence or of persons requiring
medical attention or rehabilitation.

Shall be punished with rigorous imprisonment for a term which shall not
be less than ten years but which may be for life and shall also be liable to
fine”.103

One of the categories which attract more stringent punishment is the rape
on a woman who is pregnant. In such cases where commission of rape is
established for operation of Section 376(2)(e), the prosecution has to further
establish that the accused knew the victim to be pregnant.There is a gulf of
difference between possibility and certainty. While considering the case covered
by Section 376(2)(e) of the IPC, what is needed to be seen is whether evidence
establishes knowledge of the accused. Mere possibility of knowledge is not

103
Section 376(2) (e) Indian Penal Code, 1860.

67
sufficient. When a case relates to one where because of the serious nature of the
offence, more stringent sentence is provided, it must be established and not a
possibility is to be inferred.

Section 376(2)(e) IPC requires prosecution to establish that the accused

knew her to be pregnant. This is clear from the use of the expression ‘knowing
her to be pregnant’. It is conceptually different that there is a possibility of his
knowledge or that probably he knew it. Positive evidence has to be adduced by
the prosecution about the knowledge. In the absence of any material brought on
record to show that the accused knew the victim to be pregnant, Section
376(2)(e) IPC cannot be pressed into service.

So far as the applicability of Section 376(2)(e) IPC is concerned, it is

submitted that the doctor has clearly stated that the victim was six months
pregnant, and it could be known from the external appearance. The Trial Court
had rightly observed that the accused must have known the victim was pregnant
and there is full possibility in that regard. Though the High Court has not dealt
with this aspect, it has clearly noted that the accused was in a position to
dominate the will of the victim. There was no apparent reason for a married
woman to falsely implicate the accused after scatting her own prestige and
honour.104

Rape of a Woman who is of ‘Easy Virtues’:

The un-chastity of a woman does not make her 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 her person against her wish. She is equally
entitled to the protection of law. Therefore, merely because she is of easy virtue,
her evidence cannot be thrown overboard.105

Earlier, the law permitted the cross-examiner to ask the victim of rape
questions about her past character. These questions are very embarrassing and

104
Om Prakash v. State of UttarPradesh, AIR 2006 SC 2214.
105
State of Maharashtra v. Madhukar N. Mardikar, (1991) 1 SCC 57.

68
place the victim under severe emotional strain. The questions cover not only her
immoral association with the accused in the past, but also her alleged immoral
character. This provision has now been deleted. Indian Evidence (Amendment)
Act, 2002, has inserted a proviso below sub-Section (3) of Section 146 of the
Evidence Act, 1872, thereby giving protection to a victim of rape from
unnecessary questioning about her past character.

In a rape case, even assuming that the victim was previously accustomed
to sexual intercourse that is not a determinative question. On the contrary, the
question which was required to be adjudicated was, did the accused commit rape
on the victim on the occasion complained of. Even if it is hypothetically
accepted that the victim had lost her virginity earlier, it did not and cannot in law
give licence to any person to rape her. It is the accused who was on trial and not
the victim. Even if the victim in a given case has been promiscuous in her sexual
behaviour earlier, she has a right to refuse to submit herself to sexual intercourse
to anyone and everyone because she is not a vulnerable object or prey for being
sexually assaulted by anyone and everyone.106

The prosecutrix complaining of having been a victim of the offence of

rape is not an accomplice107 after the crime. There is no rule of law that, her
testimony cannot be acted without corroboration in material particulars. She
stands at a higher pedestal than an injured witness. In the latter case, there is an
injury on the physical form; while in the former, it is both physical as veil as
psychological and emotional. However, if the court of facts finds it difficult to
accept the version of prosecutrix on its face value it may search for evidence,
direct or circumstantial, which would lend assurance to her testimony. An
assurance, short of corroboration as understood in the context of an accomplice
would do. Thus, the finding of the High Court that the girl being of loose morale
and easy virtues the accused were entitled to acquittal would be indefensible.108

106
State of U.P. v. Munshi, AIR 2009 SC 370.
107
Sri Narayan Saha v. State of Tripura, AIR 2005 SC 1452. Also see Raman alias Ramu v. State, 2009
Cri.L.J. 1915.
108
State of Uttar Pradesh v. Pappu alias Yunis and another, AIR 2005 SC 1248. Also see State of
Himachal Pradesh v. Shree Kant Shekari, AIR 2004 SC 4404.

69
 Also, in State of Punjab v. Ramdev Singh109, the factor which seems to
have weighed with the High Court is the evidence of doctor that there were signs
of previous sexual intercourse on the victim. That cannot, by any stretch of
imagination, be a ground to acquit an alleged rapist.

Can a Woman be charged for an Offence of ‘Rape’?

In the case, Priya Patel v. State of Madhya Pradesh110,the prosecutrix

was returning by Utkal Express after attending a sports meet. When she reached
her destination at Sagar, accused Bhanu Pratap Patel (husband of the accused
appellant) met her at .the railway station and told her that her father has asked
him to pick her up from the railway station. Since the proecutrix was suffering
from fever, she accompanied accused Bhanu Pratap Patel to his house. He
committed rape on her. When commission of rape was going on, his wife, the
present appellant reached there. The prosecutrix requested the appellant to save
her. Instead of saving her, the appellant slapped her, closed the door of the house
and left the place of incident. On the basis of the complaint lodged, investigation
was undertaken and charge-sheet was filed. While accused Bhanu Pratap Patel
was charged for offences punishable under Sections 323 and 376 IPC, the
appellant was charged for commission of offences punishable under Sections
323 and 376(2)(g) IPC. It was contended that a woman cannot be charged for
commission of offence of rape.

A bare reading of IPC, makes the position clear that rape can be
committed only by a man. The Section itself provides as to when a man can be
said to have committed rape. 111 Section 376(2) makes certain categories of
serious cases of rape as enumerated therein attract more severe punishment. One
of them relates to ‘gang rape’. The language of sub-Section 376(2)(g) provides
that ‘whoever commits gang rape’ shall be punished etc. The Explanation only
clarifies that when a woman is raped by one or more in a group of persons acting

109
AIR 2004 SC 1290 at 1294.
110
AIR 2006 SC 2639.
111
Section 375, Indian Penal Code, 1860.

70
in furtherance of their common intention each such person shall be deemed to
have committed gang rape within this sub-Section (2). That cannot make a
woman guilty of committing rape. This is conceptually inconceivable. The
Explanation only indicates that when one or more persons act in furtherance of
their common intention to rape a woman, each person of the group shall be
deemed to have committed gang rape. By operation of the deeming provision, a
person who has not actually committed rape is deemed to have committed rape
even if only one of the group persons in furtherance of the common intention of
all, all of such persons are liable for that act in the same manner as if it was done
by him alone.

‘Common intention’ is dealt with in Section 34 IPC and provides that

when a criminal act is done by several persons in furtherance of the common
intention of all, each of such persons is liable for that act in the same manner as
if it was done by him alone. The facts may be different and vary in character, but
must be actuated by the same common intention, which is different from same
intention or similar intention.

The sine qua non for bringing in application of Section 34 IPC that the act
must be done in furtherance of the common intention to do a criminal act. The
expression ‘in furtherance of their common intention’ as appearing in the
Explanation to Section 376(2) relates to intention to commit rape. Obviously, a
woman cannot be said to have an intention to commit rape. As such, a woman
cannot be prosecuted for the offence of rape punishable underSection 376(2)(g)
of the IPC.112

Law on Rape a settled down by Judiciary:

The first case which needs mention is Tukaram v. State of

Maharashtra. 113 In this case 18 years old Harijan girl was called to police
station on an abduction report filed by her brother at police station. When the

112
Priya Patel v. State of Madhya Pradesh, AIR 2006 SC 2639. Also see State of Rajasthan v. Hemroj and
another, 2009 (6) SCALE 586 at 588.
113
AIR 1979 SC 185.

71
girl and her family members were about to leave the police station, Mathura was
kept back at police station in late night hours and was raped by a constable,
Ganpat and then another constable Tukaram also tried to rape her but failed to do
so. The session Judge acquitted accused on the ground of tacit consent from the
charge of rape. Bombay High Court reversed the judgment and found Ganpat
guilty of rape and Tukaram guilty of molesting the woman.114

Bombay High Court made a fine distinction between “consent” and

“passive submission” and held mere passive or helpless surrender of body and
its resignation to other’s lust induced by threats or fear cannot be equated with
‘desire’ or ‘will’ or ‘consent’.

But supreme Courts again reversed the judgment on the ground of

absence of fear of death or hurt.

Supreme Court’s judgment was criticized by various jurists, social

scientists etc. This judgment result is in Criminal Law (Amendment) Act, 1983.

Another landmark case which needs mention in State of Punjab v.

Gurmit Singh. 115 In this case Supreme Court while expressing anguish on
among lower courts in handling rape cases laid down following guidelines:

i). Delay in lodging FIR is not material when properly examined.

ii). Testimony of prosecutrix in cases of sexual assault is vital and

unless there are compelling reasons which necessitate looking for
corroboration of her statement, the court should find no difficulty in
convicting accused on prosecutrix testimony alone.

iii). Trial of sexual offences should be in camera and invariably by a lady

judge whenever available.

iv). The court must restrain making observation that probably the
prosecutrix is a lady of loose moral character.

114
Ibid.
115
AIR 1996 SC 1393.

72
 v). The court is under obligation to see that prosecutrix is not
unnecessarily harassed and humiliated in cross-examinations in case
of rape trial.

In case Sri Bodhisattwa Gautam v. Shubra Chakraborty,116Supreme

Court made observation on Criminal Law Amendment Act, 1983. Supreme
Court is of opinion that even though Section 114A enables a court to raise a
presumption woman when victim of offence of rape is has not consented to the
offence but the situation has hardly improved. A large number of women still
women still fail to report rapes to police because they fear embarrassing and
insensitive treatment by police, doctors, law enforcement personnel etc. This
fear has to be allayed from the minds of women for fair and speedy trial.

The case Bantu @Naresh Giri v. State of M.P.117deals with rape and
murder of 6 years old child. The accused was 22 years. There was nothing on
record to indicate that appellant was having any criminal record not it can be
said that he will be great danger to society at large. The Court observed that act
is heinous and requires to be condemned but it cannot be said that it is rarest of
rare case. So, court commute death sentence to an imprisonment for life.

Court further held for awarding death penalty, there are two different
compartments, one being “aggravating circumstances” while the other being the
“mitigating circumstances”. The court has to consider the cumulative effect of
both these aspects while deciding death penalty.

In Koppula Venkartrao v. State of Andhra pradesh118, Supreme Court

while making difference between rape and attempt to rape observed that the sine
qua non of the offence of rape is penetration and not ejaculation. Ejaculations
without penetration constitute an attempt to commit rape and not actual rape.
The definition of rape as contained in Section 375 IPC refers to sexual
intercourse and explanation appended to this Section provides that penetration is

116
1996 SCC (I) 490.
117
2001 (4) RCC 614 (SC).
118
(2004)3 SCC 602.

73
sufficient to constitute sexual intercourse necessary to the offence of rape.
Intercourse means sexual connection.

In case of Ramanaresh and other v. State of Chhattisgarh119, Supreme

Courtwhile deciding the of punishment held gang rape followed by death of
victim is heinous crime but does not fall under rarest of rare case. Evidence in
this case shows that of deceased was accidental and not international.

Court further held while deciding whether death penalty be awarded or

not following principles are to be applied:

a) Court has to apply test, if it was rarest of rare case.

b) In the opinion of court, imposition of any other punishment would be

completely inadequate and would not meet ends of justice.

c) Life imprisonment is rule and death sentence is an exception.

d) The option to impose sentence of imprisonment of life cannot cautiously

exercised having regard to the nature and circumstances of the crime and
all relevant considerations.

e) Method and manner in which crime was committed and circumstances

leading to commission or such heinous crime.120

Death Penalty for the Offence of Rape:

However, the inhuman act of rape incites to bring about the death penalty
a punishment as Dr. Kiran Bedi [former Joint Commissioner of Police
(Training)] says, “The use of alcohol which is gaining greater acceptance among
the elite and increased projection of woman as sex symbol are two main reasons
for increased violence against women in India. Gang rape is a pre-planned and
pre-mediated act of crime. The death penalty is necessary in such certain cases to
do justice against the crime”., but death sentence would mean a fewer number of
convictions — which are already miserably low. Death penalty would require

119
(2012) SL CrLJ 1898.
120
(2012) SL CrLJ 1898.

74
more clinching and convincing evidence, which may be quite difficult to be
made available in rape cases.

Secondly, the case will have to satisfy the doctrine of ‘rarest of rare’ to
qualify for death sentence, which, in itself, is a major stumbling block.

Thirdly, a death sentence to the rapist will mean a death for the victim
also, because of his fear of being identified later and putting to death. In such
circumstances, he would tend to eliminate the evidence by killing the victim.
Moreover, even after killing the victim, he shall get no more punishment than
death. Then naturally it is implied that the offender shall try to take a chance for
escape by eliminating evidence. Hence, what is crucial is the certainty, (not
severity) of punishment and justice without being delayed or denied (as is,
unfortunately the case with all offences in this country) which may bring about
the desired result.

Basically, the problem with death penalty is that it substantially decreases

the chances of conviction. The evidence from all over the world shows that
whenever judges are about to take extreme step of ending a man’s life, they are
always assailed by doubts and look for reasons to acquit. Thus, hanging is not
the solution.121

Prospective implications of death sentence:

(i) There are greater chances that the victim may be killed, as in both the
cases (i.e. rape or rape & murder) the offender has to face the same
punishment i.e. death sentence. It is worth mentionable here that in most
of the rape cases the victim is found in the full clutches of the offender
making easier for him to exterminate the only evidence.

(ii) The case must be a fit one for “rarest of rare”.

(iii) The case may appear ‘rarest of rare’ to one judge, not to the other as the
doctrine of “rarest of rare” is subjective (not objective) in nature.

121
Indian Bar review. Vol. XLII (I) 2015 P. 119.

75
(iv) It will consume longer time and more cogent evidence shall be required to
inflict death. Consequently, the conviction-rate will decrease which is
already miserably low.

(v) The mercy petitions shall pour in.

(vi) The difference in punishment speaks about the gravity of the offences.
Graver the offence, severer the punishment. No doubt, rape is a grave
offence but there are graver offences too. For instance, in Nithari case122,
the offender Koli raped and killed six children. It’s a ghastly act of deeper
gravity and in such a case obviously the punishment must be severer but
if we provide for death sentence for every rape, what more shall we
provide for such cases?

(vii) We, as a civilized society, thrust upon reform rather than retribution.
Death sentence ought to be considered only when the offender had gone
too far from the redemption leaving no hope for reclamation but can we
guarantee that a rapist can’t be transformed.

(viii) Rape, moreover, may be the result of uncontrolled lust of the rapist which
cannot be deterred by capital punishment. Have we been successful in
curbing those offences for which death sentence is awarded? If no, then
how death sentence can deter rape? If the death sentence has potentiality
to curb a heinous offence, then murder must have been controlled a
hundred years ago while it is on the rise.

“The law of rape is not just a few sentences. It is a whole book, which has
clearly demarcated chapters and cannot be read selectively. We cannot read the
preamble and suddenly reach the last chapter and claim to have understood and
applied it”.123

The solution of the problem lies not in enhancing the severity but the
certainty of the punishment backed by the speedier delivery of justice. Delayed

122
Surendra Koli v. State Of U.P. Ors (CRIMINAL APPEAL NO(s). 2227 OF 2010)
123
Kiran Bedi, Joint Commissioner, Special Branch.

76
justice is injustice in itself. However, the judiciary is also aware of the demand
of the time and is responding accordingly in the form of some recent historical
decisions. Serving justice in record time, an Alwar (Rajasthan) Fast Track Court
on April 12, 2006 sentenced a 23 year old management student, Biti Hotra
Mohanty son of Orissa DGP level IPS Officer B.B. Mohanty, to seven years
rigorous imprisonment for raping a German scholar. The Chief Judicial
Magistrate Ravindra Kumar Maheshwari created judicial history as the entire
case was disposed of in just nine working days (within 22 days of the
occurrence). The attitude of the Judge R.K. Maheshwari played a major role in
the case. Similarly breaking all the previous records, in one of the speediest trials
for a rape case involving a 47 year old German woman, the fast track court in
Jodhpur decided within 16 days. Thus, with such a spirited attitude, we can
strengthen the philosophy of “justice delayed, justice denied”. and right to
speedy trial enshrined in the Constitution. 124 Secondly, to speed up the
dispensation of justice, the special fast track courts may be set up to deal with
the cases committed against women only.

The woman police force ought to be better utilized and the awareness
through education should be spread to sensitize the public about the special
horrors of rape, and sensitivity training sessions may be given for the police and
hospital staff who work with rape victims.

In January 2002, Law Commission recommended more stringent laws to

prevent sexual abuse against youngsters. However, a mere enhancement in
quantum of punishment shall not be of much help if the rate of detection remains
as unsatisfactory as is in present. So, the basic police investigative work must be
improved to send the message among the criminals that their alt escape-routes
are sealed. For this purposes police must have close touch with the social groups
at all levels, high or low so that a rapist cannot find refuge easily. But for this
purpose too, the police must have the image of trust worthy force, which our
police unfortunately lacks in.
124
Article 21 of the Constitution, 1950.

77
 Generally Rape is committed with a sick mind exploiting vulnerability
and an opportunity, which arises accidentally. The fear of immediate detection
will make him slink away. In this respect, rape is preventable through the
practice of self-defence measures, the avoidance of lonely places and intense
policing etc. Therefore, training girls for self defence might be thought of
through mandatory training sessions in and colleges. It will also help in boosting
self-confidence in a girl.

Current legal definition of rape requires actual penile penetration. It does

not recognize sexual assault, violence and penetration with various objects. It
defines rape only as penetrative sexual intercourse jth0Ut consent of the woman.
So all the cases of molestation, stripping, inserting of objects etc. fall by the
wayside. There is a mild law against “outraging the modesty” of a woman but
molestation, stripping, inserting objects is surely more than just outraging
someone’s modesty.

The present legal definition of rape should be made more comprehensive.

The Supreme Court in a Writ Petition 125 filed by Sakshi, an organization
interested in the issues concerning women, had acknowledged the inadequacies
in the law relating to rape and had suggested that the legislature should bring
about the required changes.

The Law Commission, in its 172nd Report based on review of rape laws,
has recommended changes for widening the scope of the offence in Section 375
IPC and to make it gender neutral. Various other changes have been
recommended in Sections 376, 376A to 376D. The Commission has also
recommended insertion of a new Section 376F dealing with unlawful sexual
contact deletion of Section 377 of the IPC and enhancement of punishment in
Section 509 of the IPC. In order to plug the loopholes in procedural provision,
the Commission has also recommended various changes in the Code of Criminal
Procedure, 1973 and in the Evidence Act, 1872.

125
Writ Petition (Cr1.) No.33 of 1997

78
 There is an urgent need to initiate a witness protection programme. In
rape cases, the victim is the main witness and her statement is of utmost
importance to nail the accused but in most of the cases, the allegations against
the accused are dropped because the victim retracts from her statements. The
victim is either threatened or bought over or is fed up with trial dragging for
years and once the victim turns hostile there is little left for conviction.

The heavy reliance on the victim’s statement is due to poor scientific

evidence. Medical tests are mostly conducted by junior doctors, who are not
experienced enough. Often vaginal swabs are not sent for the forensic laboratory
for months. Due to the delay, the samples putrefied and test negatively.

Through rape is a vicious crime but the child rape (which regrettably we
find reported almost in every day’s newspaper) is the most reprehensible form of
bestiality which requires special provisions for penalization. Ironically. Indian
rape laws make no distinction between rape of a minor and that of an adult. The
law against child-rape must be more stringent and harsher. I would like to
categorize rape into four categories namely child-rape (0 - 9 years). Pre-
pubescent rape (9 - 12 years) adolescent rape (12 -18 years) and adult rape (18
onwards). Punishment must additionally be harsher where the accused
knowingly transmits HIV to the victim.

Women need to stand up united and make eve little incident of

molestation an open issue to discussion at eve forum available till it sinks into
the consciousness of the males that each of them intends to fight this menace. A
better police force will reduce the incidences but till this issue becomes
movement, there will be little safety for women. Let NGO’s gain entry into
schools to educate the kids. We have to stop ignoring little acts of eve-teasing as
“too much to bother”.

Thus, the criminal amendment Act, 2013 is a result of public opinion.

Infect it is a fine example that how public opinion affects the law. The act is
mainly based on the recommendations of Justice Verma Committee. The initial

79
purpose of committee is to have a deterrent law on rape but merely enhancing
punishment from seven to ten years or by expanding the meaning of rape by
adding one or more clauses hardly makes any difference. It does not make law
deterrent as even after these amendments there is no decrease in cases of rape.
T.V. channels and newspapers are still loaded with news of rape cases. The way
to control sexual offences against women is not only to have a stern law but also
to educate the man to respect women and to treat them at equal par with man and
such things cannot be enforced by law but are to be learned in families, schools
and colleges. So, unless we change our patriarchal thinking, law can hardly help
us.

Kidnapping and immoral trafficking:

In India, We often come across reports exploitation of females for the

purposes of prostitution. Large number of young, innocent girls are trapped into
the snare of prostitution due to poverty or other socio-economic factors. The
most disturbing trend in the whole affair is that many of these girls are teenagers.
Minor girls and children are being bought and sold for the purposes of
prostitution. A sizable number of minor girls from neighbouring countries of
Nepal, Bangladesh and Myanmar are brought to India on one or other pretext
and sold into the viclous dens of prostitution.

This phenomenon is bringing the young generation of this nation to the

door steps of complete mental and moral degeneration, causing incalculable
damage to the enormous potential of the youth. They are reports of increasing
number of HIV infected patients in our cosmopolitan towns, especially in South
and Maharashtra. The territories in the North East, especially Mizoram Nagaland
and Arunachal suffer from high of HIV infection.

Although, the Indian Penal Code initially contained Certain provisions to

arrest the growing tide of prostitution, but the existence of such provisions had
paid very little to are Sections 372, 373, 366-A and 366-B, respectively. In order
to control this menace of prostitution, the Government of India enacted the

80
‘Suppression of Immoral Traffic in women and Girls Act, 1956, which was
amended in 1986 and renamed Immoral Traffic Prevention Act, 1956’.

This effort of enacting a separate legislation to contain the menance of

prostitution was indeed praiseworthy but no efforts were made to find out
deficiencies in the existing provisions of Indian Penal Code and strengthen them
by making suitable amendments. It is well known fact that multiplicity of law
does not help to contain a crime, but it is the deterrent element in a law, that
makes it effective. Here, an attempt has been made to study the law in the Indian
Penal Code, find-Out the deficiencies and suggest appropriate amendments to
make the law more effective and deterrent in nature. Section 372 and Section
373 deals with sale and purchase of minor girls.

“Whoever sells, lets to hire or otherwise disposes of any minor under the
age of 16 years, with intent that such minor shall be employed or used, for the
purpose of prostitution or for any unlawful and immoral purpose or knowing it
to be likely that such minor will be employed or used for any such purpose, shall
be punished with imprisonment of either description for a term, which may
extend to ten years and shall also be liable to fine”.126

The most glaring deficiency of this Section was that it did not allow
punishment for sale of a person, male or female of sixteen years of age or above
for the purposes of prostitution or any other unlawful and immoral purposes.
Such a provision had hardly any or no impact on the sale of persons. Especially
girls for the purposes of prostitution and trafficking in women and girls
continued unabated. This Section did not lay down any punishment for those
cases, where minors below sixteen were sold and were used for the purposes of
prostitution after completing sixteen years of age. This Section did not cover
such cases.

From a perusal of the amended Section 372, it appears that the sale must
have been done with the intention that such person be used for the purposes of

126
Section 372, Indian Penal Code, 1860.

81
prostitution. This means that the Section permits sale of persons under the age of
eighteen years, if it is not done with the Intention of using them for unlawful or
immoral purposes.

The Constitution of India Imposes prohibition on trafficking in women

and children for immoral and other purposes. 127 This view was expressed in
Calcutta High Court decision in Raj Bhahdur v. Legal Remembrancer. 128
Besides, Sections 370 and 371 of the Indian Penal Code also prescribe
punishment for buying, selling, import, export or otherwise disposal of any
person as a slave. When it is so, then the factor of ‘intention’, that a person sold
under the age of eighteen years may be employed or used for the purposes of
prostitution at that age or at any later age, is superfluous.

In the case of Shaiyara v. The State129, Criminal - Acquittal - Benefit of

doubt - Section 366, 368 and 373 of Indian Penal Code,1860(IPC) and Sections
3, 4 and 5 of Immoral Trafficking (Prevention) Act, 1956 - Appeal filed against
conviction under Section 366,368 and 373 of IPC and Sections 3, 4 and 5 of Act
- Whether Trial Court justified in convicting Appellant under Section 366, 368
and 373 of IPC and Sections 3, 4 and 5 of Act - Held, no tainted money was
recovered either from victim or Appellant - Identity of customers who allegedly
abused victims for money was not ascertained - No evidence emerged on record
to show if Appellant had any nexus with individuals who kidnapped or abducted
victims - No evidence has emerged to infer if at any stage victims were beaten -
No injuries were found on their bodies to infer that any resistance was offered by
any of them at time of having physical relations with so called customers against
their wishes - Prosecution was unable to establish beyond doubt that victims
were minor on day of incident-victims have made vital improvements in their
Court statements which were inconsistent - Prosecution failed to establish that
victims have forcibly subjected to prostitution against their wishes.

127
Article 23 of the Constitution of India
128
AIR 1953 Calcutta 422.
129
Crl. A. 563/2003, Decided On: 18.04.2016.

82
 In the case of Vakil Raj and Ors. v. State of Haryana and Ors.130 has
been convicted of dacoity, robbery, kidnapping for ransom, murder with rape,
serial killing, contract killing, murder or attempt to murder for ransom or
extortion, causing grievous hurt, death or waging or attempting to wage war
against Government of India, buying or selling minor for purposes of
prostitution or rape with a woman below sixteen years of age or such other
offence as the State Government may, by notification, specify.

In the case of Tattu Lodhi v. State of Madhya Pradesh 131 Criminal

Legality of death sentence - Quantum of punishment - Appellant charge-sheeted,
Offences Under Section 366(A), 363, 364, 376(2)(f)/511 and 201 Indian Penal
Code, tried by Additional Sessions Judge, found guilty of committing murder of
minor girl, aged about seven years kidnapping and attempt to commit rape on
her. Destruction of evidence relating to the crime the Trial Court awarded
punishment of death under Section 302 Indian Penal Code and RI for life and
fine under Section 364 along with other sentences all punishments of
imprisonment directed to run concurrently High Court by impugned judgment
agreed with findings of trial court answered Criminal reference in affirmative
confirmed death sentence dismissed Criminal appeal preferred by appellant.
Hence, present appeals whether the chain of circumstantial evidence is complete
and proves the guilt of the accused, whether the death sentence should be
confirmed or commuted in the present case whether the facts of the case make
out a “Rarest of Rare” case so as to confirm the death sentence of the Appellant.

The occurrence is of the year 2011 when the Appellant was said to be
about 27 years old. Considering the fact that the deceased, a helpless child fell
victim of the crime of lust at the hands of the Appellant and there may be
probabilities of such crime being repeated in case the Appellant is allowed to
come out of the prison on completing usual period of imprisonment for life
which is taken to be 14 years for certain purposes, we are of the view that the

130
CRWP Nos. 1840 and 832 of 2014, Decided On: 28.11.2015.
131
Criminal Appeal Nos. 292-293 of 2014, Decided On: 16.09.2016.

83
Appellant should be inflicted with imprisonment for life with a further direction
that he shall not be released from prison till he completes actual period of 25
years of imprisonment. With this modification in the sentence, the appeals of the
Appellant are dismissed.

Thus, the limitation of age should be removed from both Section 372 and
Section 373, which is a counter part of Section 372 and deals with purchase of
minor girls. Further, any minor girl nearing eighteen or even less than eighteen
years can be very easily projected as of eighteen years or more and the severity
of these protective legislations can be very easily flouted.

Besides, removing the age barrier the quantum of punishment provided in

these Sections should also be amended. A minimum terms of punishment with
one year’s imprisonment along with fine should be provided. Presently, no
minimum term of punishment is mentioned in these Sections.

Thus, the Section 372 and Section 373 should be redrafted as follows:-
Section 372

“Whoever sells, lets to hire, or otherwise disposes of any person with

intent that such person shall at any age be employed or used, for the purpose of
prostitution or illicit intercourse with any person or for any un-lawful and
immoral purpose or knowing it to be likely that such person will at any age be
employed or used for any such purposes, shall be punished with a minimum
imprisonment of one year but which may extend up to ten years and also with a
minimum fine of one thousand rupees”.

Explanation-I to Section 372 should read as follows:-

“When a female is sold, let for hire or otherwise disposed of to a

prostitute or to any, person, who keeps or manages a brothel, the person so
disposing of such female shall until the contrary Is proved, be presumed to have
disposed of her with the intent that she shall be used for the purpose of
prostitution.

84
 On similar lines Section 373 should read as follows:—

“Whoever, buys, hires, or otherwise obtains possession of arty person

with intent that such person shall at any age be employed or used for the purpose
of prostitution or illicit intercourse with any person or for any unlawful and
immoral purpose or knowing it to be likely that such person will at any age be
employed or used for any such purpose, shall be punished with a minimum
imprisonment of one year, but which may extend to ten years and with a
minimum fine of one thousand rupees”.

Explanation-I

“Any prostitute or any person keeping or managing a brothel who buys

hires or otherwise obtains possession of a female, shall until the contrary is
proved be presumed to have obtained possession of such female with the intent
that she shall be used for the purpose of prostitution”.

Since, the provisions contained in Sections 372 and 373 were found not
enough to control the nefarious activity of prostitution necessity was felt to
introduce additional provisions for controlling this problem. Hence, by
Amendment Act No. 20 of 1923, Sections 366-A and 366-B were introduced in
the Indian Penal Code. These Sections were designed to strike at the procurers,
whose job is to procure fresh young girls into this notorious trade of prostitution.
Section 366-A provides:

“Whoever by any means whatsoever induces any minor girl under the age
of eighteen years to go from any place or to do any act with intent that such girl
may be, or knowing that it is likely that she will be, forced, or seduced to illicit
intercourse with another person shall be punishable with imprisonment, which
may extend to ten years, and shall also be liable to fine”.

The expression ‘by any means whatsoever gives this Section larger scope
in bringing within its purview all methods of inducement for seducing a minor
girl into illicit intercourse. This Section in this respect is wider than Section 366,
which provides:-

85
 “Whoever kidnaps or abducts any woman with intent that she may be
compelled or knowing it to be likely that she will be compelled to marry any
person against her will or in order that she may be forced or seduced for illicit
intercourse or knowing it to be likely that she will be forced or seduced to illicit
intercourse shall be punished with Imprisonment of either description for a term,
which may extend to ten years, and shall also be liable to fine: and whoever, by
means of criminal intimidation as defined in this Code or of abuse of authority or
any other method of compulsion, induces any woman to go from any place with
intent that she may be, or knowing that it is likely that she will be forced or
seduced to illicit intercourse with another person shall also be Punishable as
aforesaid”.

From the perusal of Section 366, it is clear that the provision confines
itself to ‘criminal intimidation’ or ‘any other method of compulsion’, to seduce a
woman to illicit intercourse. But Section 366-A does not mention any special
type of effort but says that it can be done by any means whatsoever. But Section
366-A is only restricted to minor gir1s whereas Section 366 applies to everyone
irrespective of age.

The term ‘illicit intercourse in Section 366-A means, an intercourse

beyond the permissible limits of social norms and law. Thus all such intercourse
which are beyond the purview of sexual intercourse between married couples
shall be termed as an act of illicit intercourse. The implication is that if the
intercourse is illicit, the procurer shall be responsible even if he has not forced or
the girl to have intercourse with another person. Hence, for acts of illicit
intercourse, the person who induces the minor girl to go from any place or to do
any act shall be liable. It shall be no defence to say that he was not aware that the
girl might be forced or seduced to illicit intercourse. The contention of absence
of knowledge should not defend him from the rigours of this Section. The Courts
must apply this criterion for punishing the procurers, if any are sincerely
interested in striking at the roots of the nefarious flesh trade, of which minor
girls are the worst victims.

86
 But even if this approach is accepted, there is another escape route for the
accused from the punishment under this Section. This Section only applies to
cases, where the minor girls, under the age of eighteen years, are forced or
seduced to illicit intercourse only during minority. The Section 366-A shall have
no application in a case, where the minor girl is forced or seduced to illicit
intercourse with another person, after she has completed the age of eighteen
years, or after her entry into the nineteenth year of age. Thus, any accused can
very easily escape the clutches of Section 366-A by projecting the minor girl as a
major one. Therefore the expression forced or seduced to illicit intercourse with
another person should be amended as forced or seduced to illicit intercourse with
another person at any age.

But this expression still needs further amendment. This Section holds the
procurer liable, if he forces or seduces the minor girl for illicit intercourse with
another person. But if the procurer himself commits an act of illicit intercourse
with such a minor, then no offence is committed under Section 366-A.
Therefore, the term another person should be substituted by the term with
himself or any other person. It is only then the Section 366-A might fulfil the
objective, for which it has been framed, as generally the prostitution is initiated
by illicit relationship of the procurer with the victim. Since, the Section is
designed to hit at the very root of prostitution, therefore, a minimum punishment
of two years imprisonment, which may extend up to ten years and also a
minimum fine of rupees five thousand should be prescribed in this Section.

Thus, Section 366-A should be amended and redrafted as follows:-

“Whoever, by any means whatsoever induces any minor girl under the
age of eighteen years to go from any place or to do any act with intent that such
girl may or knowing that is likely that she will be, forced or seduced to illicit
intercourse with himself or any other person at any age, shall be punishable with
imprisonment for a minimum term of two years’ imprisonment which may
extend up to ten years and also with a minimum fine of rupees five thousand”.

87
 As far as maximum amount of fine is concerned, discretion should be
given to the judge. This shall be appropriate in view of the seriousness of the
crime, as it is a crime committed against humanity.

Section 366-B deals with importation of girls from foreign countries and
it provides as follows:-

Whoever imports into India from any country outside India or from the
State of Jammu and Kashmir any girl under the age of twenty one years with
intent that she may be, or knowing it to be likely that she will be, forced or
seduced to illicit intercourse with another person shall be punishable with
imprisonment which may extend to ten years and shall also be liable to fine.

Although this Section is specifically designed to punish the procurers of

girls of foreign origin yet the term another person frustrates the objective of
prevention of moral degradation of girls. The expression or seduced to illicit
intercourse with another person’ leaves the procurer unpunished, if he himself
commits an act of illicit intercourse with a girl below twenty one years of age
and thereby leads her to moral degradation. Therefore, the term another person
should be substituted by the expression ‘himself or any other person.’ Besides
there appears no apparent reason to limit the scope of this Section for only girls
below twenty-one years of age and, therefore the words under the age of twenty-
one years should be deleted from this Section. The other reason for this proposal
is that the Section merely punishes the procurer, if he forces or seduces the girl
below twenty-one years of age to illicit intercourse with another person. But, if
the girl is forced or seduced to illicit intercourse after she has completed the
twenty-one years of age or has crossed the twenty-first year of her age, then the
procurer cannot be punished under this Section. Therefore, the expression ‘at
any age’ should be added in this Section and the complete expression should be
forced or seduced to illicit intercourse with himself or any other person at any
age.

88
 Besides, an imprisonment for a mini term of two years, which may extend
to ten years and a minimum fine of rupees five thousand should be included in
this Section. Thus Section 366-B should be amended on these lines and redrafted
as follows:-

“Whoever imports into India from any country outside India or from the
State of Jammu and Kashmir any girl with intent that she may be knowing it to
be likely that she will be forced or seduced to illicit intercourse with himself or
any other person at any age, shall be punishable with imprisonment, which may
be for a minimum term of two years, which may extend up to ten years and also
minimum fine of rupees five thousand”.

In Shyam &another v. State of Maharashtra132, the prosecutrix was a

grown-up girl, though she had not touched 18 years of age. She claimed during
trial that she was kidnapped under threat. The evidence produced during trial
showed that she was seen going on the bicycle of the accused. The Hon’ble
Supreme Court noted that it was not unknown to her with whom she was going
and therefore, it was expected of her then to jump down from the bicycle or put
up the struggle and in any case raise an alarm to protect herself. As no such steps
were taken by her, the Hon’ble Supreme Court felt that she was a willing party
to go with the appellants of her own and, therefore, there was no taking out of
the guardianship. The appellants were acquitted of the charge under Section 366
of IPC.

Delhi High Court has declared that in order to constitute an offence of

kidnapping punishable under Section 363 of the Indian Penal Code, “there has to
be taking or enticing of a minor from the lawful guardianship of her
parents/guardian. If the minor, of her own, abandons the guardianship of her
parents and joins a boy, without any role having been played by the boy in her
abandoning the guardianship of her parents and without her having been
subjected to any kind of pressure, inducement, etc. and without any offer or

132
AIR 1995 SC 2169, 1995 Cri LJ 3974.

89
promise from the accused, no offence punishable under Section 363 of IPCwill
be made out when the girl is aged more than 16 years and is mature enough to
understand what she is doing”.133

The High Court was dealing with a case wherein the parents of a girl had
complained of an offence under Section 363 against a person with whom their
daughter had abandoned their house whereas the girl was present before the
Court and stated “that no promise or inducement was extended to her by the boy
and she of her own had abandoned the guardianship of her parents and had
joined him, in order to marry him”. The High Court noted the position to law to
hold that since there was no inducement to leave the house and she had left it on
her own, no offence of kidnapping could be made out.

In Mohd. Mannan @ Abdul Mannan v. State of Bihar134 a minor girl

aged 7 years was kidnapped, raped and murdered. Court noticed how the
accused had won the trust of that innocent girl and the gruesome manner in
which she was subjected to rape and then strangulated her to death. The accused
was aged 42-43 years. The Court held that he would be a menace to society and
would continue to be so and could not be reformed. The Court awarded death
sentence. The Court, in this case, held that a balance sheet is to be prepared
while considering the imposition of death sentence. Here also the test applied
was “balancing test” to award capital punishment.

It is held that prosecution has failed to prove its case against the accused
Kadir Khan beyond suspicion and reasonable doubt and the prosecution neither
could prove that he committed offence of kidnapping from lawful guardianship
punishable under Section 363 IPC nor kidnapping for ransom punishable u/s
364A IPC nor any minor offence connected with these offences. Therefore,
accused Kadir Khan is entitled to get benefit of doubt and consequently by
giving him benefit of doubt, accused Kadir Khan is acquitted for said

133
Amar Pal Yadav & Ors. v. State & Anr., Crl.M.C. 3370/2009.
134
(2011) 5 SCC 317.

90
offences.135 This conclusion finds support by a case Surajmal v. State (Delhi
Administration)136 wherein, the Apex Court observed that a view of the above
reasons and discussion, it is held that prosecution has failed to prove its case
against the accused beyond suspicion and reasonable doubt that either he
committed offence of kidnapping from lawful guardianship or kidnapping for
ransom punishable under Section 363 and 364A of IPC, respectively.

The court held that accused kidnapped a minor girl and committed sexual
intercourse with her. She was less than 16 years of age at the time of the
commission of the offence. The circumstances have confirmed that the accused
had kidnapped the girl with the intention or that she would be compelled for
illicit physical relations. From the statement made by the prosecutrix, the
complainant, his wife Anu Chaudhary and the investigating officer of the case,
SI B.D. Sharma, the court found that accused Dalip kidnapped the prosecutrix
from the lawful guardianship of her parents with an intent to compel her to
indulge in sexual intercourse with the accused.137

The use of the word “Keeping” in the context connotes the idea of charge,
protection, maintenance and control; further the guardian’s charge and control
appears to be compatible with the independence of action and movement in the
minor, the guardian’s protection and control of the minor being available,
whenever necessity arises. On plain reading of this Section the consent of the
minor who is taken or enticed is wholly immaterial: it is only the guardian’s
consent which takes the case out of its purview. Nor is it necessary that the
taking or enticing must be shown to have been by means of force or fraud.138

On the issue of procedural law in the case of Suman Sood @ Kamal Jeet
Kaur v. State Of Rajasthan,139 the court held that, “from the above decisions,

135
State v. Kadir Khan S/O Late Sh. Jabbar.
136
1979 Crl. J. 1087.
137
State v. Dalip Kumar S/O Santosh SC No.46/2005 Delhi
138
State v. Sheeshpal @ Shopali Etc. Decided on 27 April, 2012, ACMM/KARKARDOOMA COURTS,
DELHI, FIR NO. 331/99
139
(2007) 5 SCC 634.

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in our considered view, the following general principles regarding powers of
appellate Court while dealing with an appeal against an order of acquittal
emerge:-

(1) An appellate Court has full power to review, reappreciate and reconsider
the evidence upon which the order of acquittal is founded;

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or

condition on exercise of such power and an appellate Court on the
evidence before it may reach its own conclusion, both on questions of fact
and of law;

(3) Various expressions, such as, ‘substantial and compelling reasons’, ‘good
and sufficient grounds’, ‘very strong circumstances’, ‘distorted
conclusions’, ‘glaring mistakes’, etc. are not intended to curtail extensive
powers of an appellate Court in an appeal against acquittal. Such
phraseologies are more in the nature of ‘flourishes of language’ to
emphasize the reluctance of an appellate Court to interfere with acquittal
than to curtail the power of the Court to review the evidence and to come
to its own conclusion.

(4) An appellate Court, however, must bear in mind that in case of acquittal,
there is double presumption in favour of the accused. Firstly, the
presumption of innocence available to him under the fundamental
principle of criminal jurisprudence that every person shall be presumed to
be innocent unless he is proved guilty by a competent court of law.
Secondly, the accused having secured his acquittal, the presumption of his
innocence is further reinforced, reaffirmed and strengthened by the trial
court.

(5) If two reasonable conclusions are possible on the basis of the evidence on
record, the appellate court should not disturb the finding of acquittal
recorded by the trial court”.

92
 CHAPTER–IV
SPECIAL LAWS RELATING TO PROTECTION OF
WOMEN IN INDIA

Violence against women in India is going side by side to the

technological improvement in modern world in the country. Violence to the
women is of various types and can happen at any place like home, public place
or office. It is the big issue related to the women which cannot be ignored as it is
hindering almost one half growth of the country. Women in the Indian society
have always been considered as the things of enjoyment from the ancient time.
They have been victims of the humiliation, exploitation and torture by the men
from the time of social organization and family life. Although Indian legislative
system has formed many laws for the protection of woman but the picture of
present scenario is not so much prefect still now. The researcher has analyzed
the following laws in this relation:

I - The Immoral Traffic (Prevention) Act, 1956

II - Dowry Prohibition Act, 1961

III - Maternity Benefit Act, 1961

IV - The Medical Termination of Pregnancy Act, 1971

V - Indecent Representation of Women (Prohibition) Act, 1986

VI - Commission of Sati (Prevention) Act, 1987.

The Immoral Traffic (Prevention) Act, 1956 and Human Trafficking :

Human Trafficking is a crime against humanity. It involves an act of

recruiting, transporting, transferring, harboring or receiving a person through the
use of force, coercion or other means, for the purpose of exploiting them. Sex
trafficking is a contemporary form of slavery that violates women’s fundamental
human rights. Sex trafficking originates in poor countries having low regard for
women, lack of educational and economic opportunities, inadequate awareness

93
about the crime of trafficking, and inadequate laws to prosecute traffickers.
Prostitution has been denunciated in almost all societies and has been
condemned as an evil. Societal responses to prostitution are of three kinds:
suppression, regulation and abolition. In most countries, prostitution is illegal,
while in very few it is legalised. An attempt has been made through this paper to
examine the various initiatives at national and international levels to address the
issue of human trafficking, the role of NGOs and the approach of the Indian
Judiciary in this regard. Some suggestions have also been made to strengthen the
effectiveness of the laws.

Trafficking is an organised and systematic activity involving

displacement and movement of persons from one place to other place for their
exploitation. Immoral trafficking refers to trafficking of persons, especially girls
and women for their immoral exploitation, i.e., their sexual exploitation. In the
past decades, the volume of immoral trafficking of women and girls has
increased to such an extent that today it is the third largest form of illegal trade
after arms and drugs. The objectives of such immoral trafficking of girls and
women is their sexual exploitation in various forms, viz., brothel-based
prostitution, swingeing and call girl racketeering, sex-tourism, pornography in
electronic and print media etc. Indeed such immoral trafficking involves the
worst form of human rights abuses, including emotional, psychic and physical
and sexual violence with bleak possibilities of rescue, rehabilitation and re-
integration.

Human Trafficking these basic rights are enumerated in the Universal

Declaration of Human Rights and in many international agreements, namely the
right to life, liberty and security of persons, the right not to be held in slavery or
servitude and the right to be free from cruel or inhumane treatment. In a judicial
system which lacks effective remedies for trafficking, ironically it is the
defenceless and enslaved victims who are penalized, not the perpetration.
Trafficked women seeking help are locked up in prison for long periods of time

94
because they are viewed solely as illegal aliens, not as victims of slavery or
forced prostitution. Sex trafficking victims are sometimes arrested in brothel
raids and then deported to their home country where they further suffer the
humiliation of being treated as criminals or pariahs - simply because they were
duped into believing they could find legitimate work.

More than 2,000,000 women around the world are bought and sold each
year for the purpose of sexual exploitation.140Sex trafficking originates in poor
countries having low regard for women, lack of educational and economic
opportunities, inadequate awareness about the crime of trafficking, and
inadequate laws to prosecute traffickers. Human trafficking destination countries
are relatively rich.

The institution of prostitution is as old as human civilization. In the report

prepared by the Advisory Committee of the League of Nations the following
observations we made which indicate the tenacity with which prostitution
persists in civilized communities:

“Prostitution has outlived every social, economic, ethical and

political system which the West has known since the time of the
Greek City States. It has had its vicissitudes; but, flourishing or
languishing, public or clandestine, it has existed in large towns for
the last 2500 years, thereby proving how deeply it is rooted in
human social life”.141

Prostitution describes sexual intercourse in exchange for remuneration.

The terms generally used to refer to it are ‘commercial sex trade’, ‘commercial
sex worker’ (CSW), female sex worker (FSW) or sex trade worker. Brothels are
establishments specifically dedicated to prostitution usually confined to special
red-light areas in big cities. The devadasi (handmaiden of god) system of
dedicating unmarried young girls to gods in Hindu temples, which often made

140
CIA report: Amy O’Neil Richard.
141
Prevention of Prostitution, League of Nations Report, Geneva, 1943, P. 8.

95
them objects of sexual pleasure of temple priests and pilgrims, was an
established custom in India as early as in 300 AD.

Present Scenario :-There is a growing commercialization of the flesh

trade in India and all over the World. PITA has many loopholes & inadequacies.
There is an ambiguity in the attitudes towards prostitution on the one hand where
prostitutes are considered with a degree of sympathy and on the other hand they
are termed as unfortunate girls who have come out of their homes because of bad
behaviour of some of the members of their family or any other reason such as
poverty etc. Trafficking of women and girls has been on the increase, the
increase in recent years of violence against women and decrease in the rate of
conviction and rehabilitation of these cases has become alarming and a matter of
deep concern. So PITA’s importance has risen also with all its short comings.
Given this backdrop, PITA should have provided provisions for the maintenance
of the children of Prostitutes. In fact, in practice of our daily life, we see that the
law enforcing agencies are somewhat legalising prostitutes though not legally &
directly.But what is the Human Rights provision of these Sex-Workers is a
million dollar question, remains to be answered by the Government, law
enforcing agencies judiciary etc. The Government should see that all forms of
discriminations are eliminated against women and on the rights of the children
together with forced labour which partly tantamount to slavery & slave trade. It
is relevant also to mention here phenomenon like burden of evidence, penalty,
juvenile justice, kidnapping etc.

The Dowry Prohibition Act, 1961:

The torture and humiliation of women is an age old curse. In various

societies her functions have been relegated to attend the house hold. She has
been the worst target of social and economic exploitation. The whole of her life
is so structured that she has become subservient to the needs of man and has
become a victim of social and personal aggression.142 Even in the era of equality

142
Paras Diwan, “Women and Legal Protection” (1994).

96
of sexes, it is ironical that cruelty to women and problems of battered wives have
become almost worldwide phenomena. Offences against women have been
classified in various societies in various ways and enormous laws have been
enacted143 in different countries to provide protection to women.
Among various types of heinous crimes resorted to against a woman
‘dowry-death’ is more heinous and peculiar one as it is mostly given appearance
of suicide or accidental death, generally, resulting from burning by fire. Dowry
death is a crime which is virtually of socio-economic nature and peculiar to
India. In a society heading madly towards materialism, dowry appears to be the
surest, easier and shortest way to get richer and equipped with modern gadgets
and facilities. In dowry greedy society, the situation has become so alarming that
wedding has, in fact, turned into an open sale of the husbands and price of
bridegroom varies fixed according to socio-economic status of grooms family
his job, qualification etc. In India, frustrated people demand dowry and greed for
the dowry leads to dowry deaths. The dowry-deaths are constantly increasing
over the years.144 Legislative measures to curb this ever increasing crime do not
seem to have made any dent.
Now-a-days violence against women has been increasing in India.145 The
State of Uttar Pradesh has the dubious distinction of having one of the highest
rate of crimes against women in the country. It is more disturbing and said that
in most of such reported cases it is the woman who plays a pivotal role in this
crime against the younger women, with the husband either acting as a mute
spectator or even an active participant in the crime. In many cases, the husband,

143
In general to tackle the menace of hooliganism and violence against women, the Indian Penal Code,
1860 the Code of Criminal Procedure, 197, the Dowry Prohibition Act, 1961 etc. England too has passed
two important statutes in this area namely, “The Matrimonial Homes Act, 1967 and The Domestic
Violence and Matrimonial Proceedings Act, 1976.
144
In 42 minutes one dowry-death. Published “Dainik Asha” dt 24.01.1995 (Indian NCRB Analysis) Lok
Sabha was informed on 27.07.1983 that 162 cases of bride burning in Delhi between 11.04.1983 to
30.06.1983. 47 Dowry-deaths were reported to Delhi Police between 01.01.1982 to 31.03.1983, Delhi in
Parliament, The Times of India, New Delhi, 28.07.83 at 05.
145
The issue of violence against women and broadening Horizons of women’s organisation in India. p.no.
9, a paper read by Nilika Mehrotra, Deptt. of Anthropology, Delhi University in a seminar on woman and
violence held on 18 and 19/4/92 in Sociology Deptt. of Lucknow University See also A.S.Anand , J. in
Kundula Bala Subrahmanyam v. State of A.P. (1993) 2 SCC 684 p700.

97
even after marriage continues to be ‘Mamma’s baby’ and the umbilical cord
appears not to have been cut even at that stage.146 Whether dowry is a reason
behind this? The daily newspapers state that it is also one of the important
reason. That is why the legislature realising the gravity of the situation has
enacted and amended the laws from time to time.
Under Dowry prohibition Act,1961, giving and receiving of dowry both is
prohibited, Dowry has been defined as any valuable asset, property or gift that is
given or received by either party of the marriage, or the parents of either party of
the marriage, to either each other or to any other person, in connection with the
marriage. These assets or gifts may have been given at or before or any time
after the marriage, but they must be in connection with it to qualify as dowry.
The exceptions to this is the dower or mehar that is the right of Muslim
women,147 under Shariat law which are also accepted as presents made to either
the bride or the groom, provided that lists of such presents are maintained and
the gift remains the exclusive property of the receiver, and provided that the
value of the gift is not excessive considering the financial status of the giver.
Such gifts must also be voluntary.148

The Maternity Benefit Act, 1961:

Maternity benefit is an indemnity for the loss of wages incurred by a

woman who voluntarily before and compulsorily thereafter abstains from work
in the interest of her child and herself.149 In 1919 the first Maternity Protection
Conference was convened by the International Labour Organization (I.L.O.)
wherein the matters in regard to maternity leave, economic benefits during
absence from work, leave for bringing up children and non-termination of
service during pregnancy and immediately after delivery were most prominently
discussed and resolved over. In India in the year 1929,150 the maternity benefit

146
A.S. Anand, J. n Kundula Bala Subrahmanyam v. State of A.P. (1 993) 2 SCC 684.
147
Section 2, Dowry Prohibition Act, 1961.
148
Section 3, Dowry Prohibition Act, 1961.
149
Malayalam Plantations Ltd. v. Inspector of Plantations AIR 1975 Ker 86 at 89.
150
The Bombay, Maternity Benefit Act, 1961.

98
legislation was introduced with the enactment of the Bombay Maternity Benefit
Act, 1929 under which maternity benefits were paid to the employed women
before and after child birth. This was followed by the enactment of the similar
legislations by other States providing maternity benefits to employed women
with varying qualifying conditions.

The resolution of the first Maternity Protection Convention adopted in

1919 was amended in 1952. This amendment provided for increase in the
maternity leave, economic benefits by hundred percent of the last wages and
added some more benefits to the matters of new borns. Of course, motherhood is
a natural phenomenon in the life of every woman and this phase needs Special
care and protection. This has been recognised in Article 25(2) of the Universal
Declaration of Human Rights. The said Declaration lays down:

“The motherhood and children are entitled to special care and

assistance. All children whether born in, or out of, wedlock, but
enjoy the same special protection”.

In the agenda of the sixteenth session of I.L.O. held in 1975, the eighth
item was ‘the equality of opportunity and treatment of women workers”.
Emphasis was also laid on the need to make maternity protection more adequate,
as regards(a) extension of maternity protection to needy categories of women
workers; (b) extension of the period of statutory or prescribed maternity leaves;
(c) more liberal provision for extended or extra leave during the child’s infancy;
(d) higher rates of maternity benefits; (e) more effective protection against
dismissal during pregnancy and after confinement; (f) greater encouragement of
breast feeding and wider provision of nursing breaks for mothers; (g) more
adequate attention to the safety and health of women during pregnancy and
location; and (h) establishment by social security schemes of public bodies of
day nurseries to care for infants and children of working parents.

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The Medical Termination of Pregnancy Act, 1971:

The quest for privacy is inherent in human behaviour. It is natural need of

a man to establish individual boundaries and to restrict the entry of others into
that area. There are few moments in the life of every-one when he does not want
interference of others and desire to be alone. This autonomy is an essential
element for development of one’s personality. These areas may be in relation to
person, family marriage, sex or other matters, which require close chamber
treatment. In such areas, an individual requires to be at liberty to do as he likes.
An intrusion on privacy threatens that liberty. For the happiness of man, it
becomes necessary to protect intrusion in one’s secret, which is basic to a free
society and more particularly in a democratic world.151

Issues of sexual and reproductive autonomy and the quest for privacy lie
at the core of passionately held ideological, religious, and cultural notions of
female gender identity. Nothing would advance women’s welfare more than
respecting their reproductive autonomy. Such autonomy must encompass and
protect the personal intimacies of marriage, motherhood, procreation, and child
rearing. 152 This autonomy is also broad enough to encompass a woman’s
decision whether or not to terminate her pregnancy.153

Reproductive and sexual issues frequently present the context for

trampling of woman’s right by or with the deliberate acquiescence of the State.
However, regulations limiting woman’s right may be justified only by a
compelling State interest, and that legislative enactment must be narrowly drawn
to express only the legitimate state interest at Stake.154

The Indecent Representation of Women (Prohibition) Act, 1986:

In today’s commercial development culture, a new generation of get up

and are seeking greater challenges in business and industry. Advertising has

151
Frankfurter J., Wolf v. Colorado, (1948) 338 U.S. 25.
152
Gobind v. State of Madhya Pradesh and Anr., AIR 1975 SC 1378.
153
Roe et al. v. Wade, District Attorney of Dallas County,(1973)410U.S. 113.
154
Ibid.

100
opened the doors to these hopefuls. In male dominated culture, the women figure
perhaps, is more attractive and sensitizing to affect the minds of the people.
Seemingly with this view, the business, trade and other media, advertise their
wares, products and ideas by representing the same with the women’s figure in
one or the other form. To achieve their commercial and publicity objectives, the
advertisers and the media often transgress the, limits of “decency and propriety
by exposing and depicting the women personality or the privacies of women life
in objectionable and obscene manner”.

Against such tendencies, a number of women organizations working for

the dignity and rights of women raised their voices (All India Federation of
women Layers, Stree Atyachar virodhi Morcha, Maharashtra Mahila Sanyukta
Morcha). The position not being fully covered by the provisions of the Indian
Penal Code regarding obscenity, the Indian Parliament, therefore, passed an Act
entitled “Indecent Representation of Women (Prohibition) Act, 1986”.155

The Supreme Court was in connection with freedom of speech and

expression guaranteed by the constitution as a fundamental right ‘article 19(1)
(a).156 Freedom of speech and expression is subject to reasonable restrictions in
the interest of decency and morality. What is obscene or indecent? Whether the
tendency of the matter charged as obscene 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 obscene if it is quite certain that it would
suggest to the minds of the young of either sex or even to person of more
advanced years, thoughts of most impure and libidinous character. In Re Hicklin
case157 the question was considered by the Supreme Court in Ranjit D. Udeshi
vs. State of Maharashtra.158 This pertains to an ‘obscene’ passage in the book
‘Lady Chatterley’s Lover.’

155
Act No. 60 of 1986.
156
The Indian Constitution, 1950.
157
(1868) Q.B. 360.
158
AIR 1965 SC 88.

101
 The court said that the word obscenity denotes something which is
offensive to modesty or decency, which is filthy and repulsive. Pornography is
obscenity in an aggravated form. But treating with sex and nudity in art and
literature cannot be per se regarded as evidence of obscenity without something
more. In the words of Justice Hidayatulla:

“………… Treating with sex in a manner offensive to Public

decency and morality and these are the words of our Fundamental
Law judged by our national standard and considered likely to
ponder to lascivious, prurient or sexually precocious minds must
determine the result”.

The learned judge added that of course, “we need not attempt to
bowdlerize all literature and thus rob speech and expression of freedom;” a
balance must be maintained between freedom of speech and expression and
public decency and morality but when the later is substantially transgressed the
former must give way.

Since indecent representation of women in various form has been on the

increase, women’s organization and others have been protesting against it. As a
sequel to this Parliament passed this Act.

The Commission of Sati (Prevention) Act, 1987:

Sati was an ancient Hindu custom, according to which a wife immolated

herself at the funeral pyre of her husband. The sati tradition was prevalent
among certain sects of the society in ancient India, who either took the vow or
deemed it to be a great honor to be able to commit sati and the “Satimata” was
idolized by the society. In 1811, Roy witnessed his brother’s widow being
burned alive on her husband’s funeral pyre. Three years later, he retired and
concentrated on campaigning against the practice of women dying as Satis. Raja
Ram mohan Roy was the first Indian to protest against this custom. In spite of
protests from orthodox Hindus, he carried on his propaganda against the custom.
Finally, he won the cause when Lord William Bentick, the Governor General of
102
India passed a law in 1829 abolishing the custom of Sati. According to this law
the custom of Sati became illegal and punishable as culpable homicide.

Finally, within 18 months of having assumed the governorship of Bengal,

Lord William Bentinck passed the Sati Regulation, XVII of 1827 on 4
December. The regulation was clear, concise and unequivocal in its
condemnation of Sati, declaring it illegal and punishable by the criminal courts.
It made zamindars, petty land owners, local agents and officers in charge of
revenue collection especially accountable for immediate communication to the
officers of their nearest police station of any intended sacrifice of the nature
described. In case of willful neglect the responsible officer was liable to a fine of
Rs.200 or 6 months in jail for default. Immediately on receiving intelligence that
a sacrifice was to take place, the police daroga accompanied by others was to go
to the spot and declare the gathering illegal, prevail upon the crowd to disperse,
explain that any persistence was likely to make them all liable to a crime and if
necessary prevent the Sati from taking place or go and inform the nearest
magistrate of the names and addresses of all those present. If the sacrifice was
over, a full and immediate inquiry had to be undertaken in the same way as for
any unnatural death.

Lord William Bentick, Governor-General from 1828-35, was the pilot

mainly responsible for trimming the sails of the British Indian state to the wind
of change. Bentick owed his appointment partly to his desire to wipe out the
memory of his recall from the Madras governorship in 1807, partly to his
connections (his father had been a Whig party Prime Minister of Britain), partly
to the company’s need of a strong hand to enforce economies and partly due to
the unwillingness of others to go.

Bentick proceeded on a great northern tour and set in motion a new land
revenue policy based on detailed surveys made on the spot. This, became the
basis of north-Indian land administration during the British period. He reformed
the judicial system creating two new grades of Indian judges. In 1828 he
suppressed Sati or the burning of widows on the funeral pyres of their husbands.

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In the Bengal presidency in the previous fifteen years recorded burnings only
had varied from 500 to 850 annually. In orthodox theory this practice was a
voluntary action on the part of the Hindu widow anxious to rejoin her god-
husband through the purifying flames. She was Sati or devoted. In practice it
was often induced by relatives ambitious for the prestige of Sati in the family,
greedy of her property, or wanting one less mouth to feed. Raja Ram Mohan Roy
had fought for a ban on Sati for past few years and had petitioned in various
courts but successive Governor Generals were hesitant to take some action. Lord
William Bentick acted and banned Sati and surprisingly faced little or no
opposition from orthodox Hindus. Raja Rammohan Roy also opposed child-
marriage and supported widow remarriage.

Most significantly the regulation eschewed any debate about

voluntariness which has so much in the forefront of the Sati debate in 1987.
Aiding and abetting a sacrifice whether voluntary or not was to deemed culpable
homicide. Punishment was at the discretion of the court according to the nature
and circumstances of the case. No justification was to be made that the victim
desired to sacrifice. The death penalty was specially spelled out for any violence
or compulsion or helping or assisting in burning of a widow while she laboured
under a state of intoxication or stupefaction or because any other cause impeded
her free will. In such cases the court was instructed to show no mercy.

A large scale of social reform undertaken by Swami Dayanand Saraswati

and Mahatma Gandhi helped in actually putting a stop to the practice. However,
the practice is still in vogue in some parts of Rajasthan and Madhya Pradesh. In
light of these incidents, the Government of India enacted the Commission of Sati
(Prevention) Act, 1987.

In the modern times, there have been a few instances of sati in Rajasthan
(1987), Utter Pradesh (2006), Madhya Pradesh (2002 and 2006) and in
Chhattisgarh (2008). The practice of Sati mostly happens in parts of north and
central India. Isolated incidents may be more but not reported officially that
caused a lot of controversy and social turmoil in the country over and over again.

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 CHAPTER–V
JUDICIAL TRENDS

The success or failure of any legislation depends upon the attitude of the
judiciary which is the ultimate guardian of the interests of the citizens of the
country. It is the judiciary which can “make” or “mar” the result of an even
beneficial legislation. Hence, an attempt has been made in this chapter that how
Indian judiciary has acted while interpreting the legal provisions relating to
protection and development of social status of women in India. It is happy to
point out here that Indian judiciary has acted in a cautious and alert manner from
the time it got opportunity to interpret the legal provisions. The judiciary in India
from the dawn of Independence in the country to the date has played a major
role in the formulation and interpretation of legislations so that the status of
women in the society return back to its original and both the sexes participate
equally in the development of society. Hence, an effort has been made in this
chapter to study the attitude of judiciary toward the protection of women in
India.

The position of the women in India is still bad. They still need rights to
alleviate themselves in society but many a time fail to notice others’ rights as
long as their rights are ensured. The educated woman of today must agree with
the mantra of equality and demand the same but the trend is slowly getting
reversed. Women are taking due advantage of the fact that they are referred to as
the ‘weaker sex’ and on the foundation of rights ensured to them are violating
others’ rights.

In this regard, Hon’ble the apex Court in Babu Ram’s159 on the Role of
District Judicial has held as under:-

“At long last, the unfortunate and heroic saga of this litigation is coming
to an end. It has witnessed a silver jubilee. Thanks to our system of

159
Babu Ram v. Raghunath Ji Maharaj, (1996) 3 SCC 492

105
administration of justice and our callousness and indifference to any drastic
reforms in it. Cases like this, which are not infrequent, should be sufficient to
shock our social as well as judicial conscience and actives us to move swiftly in
the direction of overhauling and restructuring the entire legal and judicial
system. The Indian people are very patient, but despite their infinite patience,
they cannot afford to wait for twenty five years to get justice. There is a limit of
tolerance beyond which is would be disastrous to push our people. This case and
many others like it strongly emphasis the urgency of the need for legal and
judicial reforms. A little tinkering here and there in the procedural laws will not
help. What is needed is a drastic change, a new outlook, a fresh approach which
takes into account the socio-economic realities and seeks to provide a cheap,
socio-economic expeditious and effective instrument for realization of justice by
all Sections of the people, irrespective of their social or economic position or
their financial resources”.

The above mentioned passage from the judgment of the Hon’ble Apex
Court in Babu Ram’s160 case shows the attitude of the district judiciary regarding
its day-to-day judicial functioning. It is the traditional approach and mechanical
way of working, prevailing in the District Courts responsible for the huge
backlog. Justice J.S. Verma report161 in its conclusion and recommendation part
at para no. 3 provides that available personnel of the judiciary and the
infrastructure, with a few systemic changes can, at least, reduce half the burden
of arrears in courts contributing to delays in enforcing the law of the land.
Judges strength can be increased in phases without diluting their quality. In para
no. 1 of the report, it is also mentioned that the existing laws, if faithfully and
efficiently implemented by credible law enforcement agencies, are sufficient to
maintain law and order and to protect the safety and dignity of the people,
particularly women, and to punish any offenders who commit any crime. This is

160
Ibid
161
Justice J.S. Verma Report on Criminal Law Amendment Act 2013.

106
not to say that the necessary improvements in the law, keeping in mind modern
times, should not be enacted at the earliest.

Speedy justice is not merely an aspect of the right to life with dignity, but
is essential for efficacy of the law and its desired impact, as well as for
prevention of its violation. The restatement of values of judicial life is a charter
of faith for every judicial functionary at all levels.

The Parliament has, on several occasions, amended the provisions of

criminal law substantive as well as procedural but the district courts have yet not
developed any mechanism to implement these amended provisions for
dispensation of justice. Justice J.S. Verma committee has rightly pointed out that
if the laws properly implemented they are sufficient to maintain law and order
and to punish the criminals. In this research paper, we are discussing where the
fault lies and suggesting some mechanism to eradicate the fault for proper
judicial functioning.

The mere knowledge of law to all the stakeholders of the judicial system
will not be sufficient. But all the stakeholders of the judicial system must also
have the knowledge of social, economic, political and ethical jurisprudence. This
can only be possible through a scientific, social, economic, ethical and legal
training in the Academies. The thrust should be that law should be implemented
by an ethical person having good knowledge of social, economic and ethical
jurisprudence.

Problem- Every day newspapers and the electronic news bulletin apprise
us about the menace of crimes against women, which is rapidly increasing in
spite of implementation of Criminal Law Amendment Act, 2013. We all know
what has happened with Nirbhaya in Delhi. The incident of Delhi cannot simply
be categorized as rape, but was committed in such a manner and with the motive
if Nirbhaya was not a human being but an article or a sex object which can be
used by anyone in any manner. No doubt, a criminal court in Delhi has awarded
the capital punishment to all the persons, and rightly so, because such heinous

107
act cannot be accepted from a normal human being and with such an
abnormality, no person should be permitted to live in the society. Before few
months, a young girl was humiliated in Guwahati in presence of so many male
persons. None amongst them opposed it. Even a member of fourth pillar of
Indian Democracy, the press and media, was busy in recording the incident
without bothering for the safety and security of women physically tortured. The
incident was telecasted by all the national channels. Thereafter, the government
came into action under the pressure of some NGOs working for women
empowerment. We also apprise ourselves with the directions of Khap
panchayats regarding social, domestic, economic and educational behavior of
women and girls. The khap panchayats have tried to regulate the individual
rights and liberty of women. Justice J.S. Verma report in its recommendations at
para no. 2 of part II has held that as a primary recommendation, all marriages in
India (irrespective of the personal laws under which such marriages are
solemnized) should mandatorily be registered in the presence of a magistrate,
which magistrate will ensure that the marriage has been solemnized without any
demand for dowry having been made and that the marriage has taken place with
the full and free consent of both partners. In fact, in majority of cases,
particularly in the rural areas, the girls have no say in the matter of marriages as
to with whom they are going to marry. Moreover, khap panchayats decides what
a woman should wear, whether they should be permitted to use mobile, their
right to marry, their right to choose the profession for economic survival etc. On
this issue as well Justice Verma Commission recommendations in part II in para
8 has recommended that the insensitivity of the police to deal with rape victims
is well known. The police respect a patriarchal form of society, and have been
unable to deal with extraordinary cases of humiliation and hardship caused by
the khap panchayats, as is evident from various judgments of the Supreme Court.
The police are involved in trafficking of children (including female children) and
in drug trade. To inspire public confidence, it is necessary that there must not
only be prompt implementation of the judgment of the Supreme Court in

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Prakash Singh, but also police officers with reputations of outstanding ability
and character must be placed at the higher levels of the police force.

Surprisingly the view of male political leaders on Khap panchayats is

more alarming. One of the senior political leaders of Haryana has appreciated
and supported the decisions of Khap Panchayats taken on the problem of
increasing the incidents of rapes in Haryana. On this problem, it has been
suggested by the Khap Panchayats that to curb the problem of rape in Haryana,
the age of marriage of girls should be reduced from 18 to 15 years. In the present
era of medical science, we know the consequences of early age marriages of
girls on their health. Is it not the failure of State to stop the menace of heinous
crimes like rape against women? On the other hand, as per suggestion, the
punishment of rape should also be given to girls by marrying them at an early
age of 15? It seems to be the failure of democratic government.

Mr. Amir Khan, a prominent actor and social worker in his programme
‘Satymeve Jayate’ based on the scientific research, has stressed that almost 80%
of the women in India are suffering with the domestic violence. It is not the wife
only facing the agony of domestic violence by husband but daughter is facing
the domestic violence by father, sister by brother, granddaughter by grandfather
etc. Male preference is a dominant feature of Indian society which resulted in
‘foeticide’ consequently disturbing the sex ration in Indian social structure. In
fact, the men want to control and regulate the life of the women at their whims.
Proper attention on education, nutrition, food and other social benefits is not
given for the women.162

Undoubtedly, in the global societies, women still have the secondary

status. Being a research scholar, and a feminist, for the satisfaction of my
research conscious, I conducted an empirical survey and interviewed so many
personalities on the position of women in the society. One of the Hon’ble Ex.
Chief Minister has expressed that we should not even talk for equality of men

162
Amir Khan, Gharailu Hinsa Kee Tradsi, Dainik Jagran, dated 18.6.2012, p.10.

109
and women in the society. When asked the reasons, Hon’ble the Chief Minister
replied ‘women in India are considered as mother and goddesses since time
immemorial’. How a mother or goddesses can claim equality with male
counterpart of the family or the society?’ Hon’ble the chief minister also viewed
on the present system of nucleus families with working husband and wife,
ignoring social, moral and family support to the young ones of the family.

Hon’ble the Chief Minister may be right on nucleus families and the lack
of supportive family mechanism for children. But, whether every woman in the
global societies can be considered and accepted as mother or goddesses to
deprive them the rights of equality and equal opportunity goddesses and
motherly figure, gives an idea about the individuality of women and other
relational capacity. In relational capacity, as daughter, sister, wife or mother the
women may have some rights and privileges. But, when we talked about the
individuality of the women, no one is ready to even talk for equal status and
opportunity.

The failure of recognition of individuality of women also inspires whether

a women is a person. 163 Person means a human being capable of exercising
rights and privileges and observing duties in the eyes of law. When women are
claiming individual rights which may be education, clothing, social recognition
or the sexual orientation, it appears that women are lacking legal personality.
‘Nirbhaya’ incident of Delhi is an example. The way ‘Nirbhaya’ was behaved by
five culprits shows that she was treated as having no legal personality.

After the ‘Nirbhaya’ incident, United Nations Organization has referred

the rape as national problem of India. The statement of United Nations
Organization shows that this national problem of rape has direct nexus with the
male personality and mentality. Male domination in the society is also reflected
from views of some prominent persons like Abhijeet Mukharjee, M.P. and son

163
Sudhir Kakkar, Is an Indian Women a Person, Times of India, New Delhi, Wednes-day, January 9,
2013.

110
of His Excellency the President of India, commenting on assembly of girls, men
and women against the incident of rape with ‘Nirbhaya’ in Delhi.

Likewise the statement of a spiritual guru that if Nirbhaya had accepted

the rapists ads brothers, the incident would have been avoided again shows the
male domination and bias male attitude towards women. No one has stated it that
the rapists could have treated ‘Nirbhaya’ not only as sister but as a dignified
human being of Indian society. This all reflects the gender bias, which is deeply
rooted in the society.

Present Trends of Crime against women:

Rape is the prevalent crime against women in India and worldwide

Regarding nature, manner of committing the offence like rape and the
consequences of rape on women, the view of Brown Miller Susan 164 in his
Article ‘against Our Will’, 1986, reported and relied in Sakshi’s.165

Following passage is brain storming;

“…in rape… the intent is not merely to ‘take’, but to humiliate and
degrade Sexual assault in our day and age is hardly restricted to forced genital
copulation, nor is it exclusively a male-on female offence. Tradition and biologic
opportunity have rendered vaginal rape a particular political crime with a
particular political history, but the invasion may occur through the mouth or the
rectum as well. And while the penis may remain the rapist’s favourite weapon,
his prime instrument of vengeance… it is not in fact his only tool. Sticks, bottles
and even fingers are often substituted for the ‘natural’ thing. And as men may
invade women through other orifices, so too, do they invade other men.

Who is to say that the sexual humiliation suffered through forced oral or
rectal penetration is a lesser violation of the personal, private inner space, a
lesser injury to mind, spirit and sense of self?”

164
Brown Miller Susan ‘Against Our Will’, 1986,
165
Sakshi v. Union of India, (2004) 5 SCC 241

111
 We have seen it in Delhi in a case of rape with the girl of 5 years. Rapist
has not only penetrated, but, has also inserted oil bottle and candles in to the
private parts of the girl. It also reflects the male psychology what he considers a
woman?

The above passage also shows that most prevalent crime against women
is the rape and sexual exploitation. No doubt acid throwing and other types of
crime against women other than rape are also prevalent crimes. But in most of
the cases the acid throwing is consequential of sexual harassment. Apart from it,
almost all women in India have faced the agony of human rights violations in
family and society, but the prevalent crime against the women is the rape and
other sexual misbehavior. In Ram Dev Singh’s case,166 His Lordship Hon’ble
Justice Arijit Pasayat in para no. 1 of the judgment has held as under:

“Sexual violence apart from being a dehumanizing act is an unlawful

intrusion on the right of privacy and sanctity of a female. It is a serious blow to
her supreme honour and offends her self-esteem and dignity. It degrades and
humiliates the victim and where the victim is a helpless innocent child or a
minor, it leaves behind a traumatic experience. A rapist not only causes physical
injuries but more indelibly leaves a scar on the most cherished possession of a
woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is
not only 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 deep
emotional crisis. It is a crime against basic human rights, and is also violative of
the victim’s most cherished of fundamental rights, namely, the right to life
contained in Article 21. The Courts are, therefore, expected to deal with cases of
sexual crime against women with utmost sensitivity. Such cases need to be dealt
with sternly and severely. A socially sensitized judge is better statutory armour
in cases of crime against women than long clauses of penal provisions,
containing complex exceptions and provisos”.

166
State of Punjab v. Ram Dev Singh (2004) 1 SCC 241.

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 In this judgment, Hon’ble the Apex Court has also held that two finger
test is illegal and unconstitutional being against the dignity of women. Hon’ble
the Apex Court has directed not to conduct such test in future during
investigations, and if the test has been conducted, further directed the courts at
its threshold not to rely upon this evidence.

Apart from the sexual offences we can also see some other types of crime
against women such as the crime to deprive the women from ancestral or self
acquired properties. One thing is sure that whatever may be the nature of crime
against women that is due to the patriarchal nature of society. The majority of
crimes against women are of sexual nature, so, I am explaining this crime
against women in brief.

In Deepak Gulathi’s Case,167 the apex court of India on the consequences

of rape on the women has held-

“Rape is the most morally and physically reprehensive crime in a society,

as it is an assault on the body, mind and on privacy of the victim. While a
murderer destroys the physical frame of the victim, a rapist degrades and defiles
they should of the helpless female. Rape reduces a woman to an animal, as it
shakes the very core of her life. By no means can a rape victim be called an
accomplice. Rape leaves a permanent scar on the life of the victim, and
therefore, a rape victim is placed on a higher pedestal than an injured witness.
Rape is a crime against the entire society and violated the human rights of the
victim. Being the most hated crime, rape tantamount to serious blow to the
supreme honour of the women, and affects both, her esteem and dignity. It
causes physical and psychological harm to the victim, leaving upon her indelible
marks”.

Before explaining the causes and Role of Courts in the heinous crime like
rape, it will be proper to understand the term rape. After Delhi rape incident, I

167
Deepak Gulathi v. State of Haryana (2013) 7 SCC 675.

113
have mailed randomly a question on several websites to at least 20,000 persons
worldwide. The question was

“A young India girl aged about 23 years was brutally beaten up and raped
in Delhi. She could not survive with the injuries inflected on her body by six
rapists. The true homage to the girl will be providing the government of India a
mechanism for safety of women in India. May I request you to please give your
views in short on the reasons of committing rape and for suggesting mechanism
to stop it? I am ensuring to all of my friends to suggest an implementable
mechanism to the government of India to stop this menace of crime against
women in India and worldwide”.

On the above question Mr. Rajendra Goyal, male 46 years, working in

education department in Bharatpur, Rajasthan, India has wonderfully replied as
follows:

“Has the number of rapes gone up recently or the reporting of rapes has
increased? Delhi is anguished and agitating once again. We cannot control crime
unless we introduce prompt penalty. In a rape when the medical report confirms
the rape, fixes the rapist, the rapist is arrested and found guilty, when there is no
room for mutual consent; why we fail to punish him instantly? Our DIVINE
judicial system is too considerate to make us feel that ill is treated then and there.
There are few societies that arrange automatic reward/punishment system for
doing good/bad. The reason is-power does not tend to woo justice as the very
origin of power is unjust and we still are to evolve a society that does not
aggregate power snatching it from its individuals.

What to do?

There is a way out. We hitherto have been very myopic. We have been
enjoying knowledge (or education or awareness or wisdom or smartness, etc.)
without any empathy to the person next to us who is suffering from ignorance;
thinking- it’s not my job. We have to pay for this myopia and we are paying for
this every moment. How wise we are! Just take a trial, start spreading the
114
knowledge you have among those who lack in it for only a decade worldwide
and see how thing change for good.

Back to rape! Have we stopped all that arouse just? Have our media films,
and all source of it, learned any lesson? Lust is subject to satisfy naturally, to
moderate and not to arouse. Whoever adds to its arousal also contributes to such
incidents. To look beautiful is a natural right of a lady but this should not involve
arousal of lust. Today more and more exposure of body is thought to be more
and more civilized. Civilization shouldn’t be synonymous to vanity and
gaudiness.

Lastly, leadership cannot ensure justice as it is suicidal to itself. If we

wish to have a fragrant system within the society we live in, we have to puff out
the foul within us and from the person next to me. To educate the ignorant voters
to elect the best representative will yield the best result in the shortest time.
AMEN”

After the ‘Nirbhaya’ incident, Govt. of India has enacted the Criminal
Law (Amendment Act)168, 2013 to redefine the sexual crimes against women.
The crime of rape has been altogether redefined and I will not hesitate to say that
this definition and inclusion of some other acts of sexual nature against women
in the offence of rape is a new era of criminal jurisprudence. The rape is
redefined under the Indian Penal Code as follows:-

Section375. A man is said to commit “rape” if he

(a) Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus
of a woman or makes her to do so with him or any other person; or

(b) Inserts, to any extent, any object or a part of the body, not being the penis,
into the vagina, the urethra or anus of a woman or makes her to do so with
him or any other person; or

168
Criminal Law (Amendment Act), 2013, Act no. 13 of 2013.

115
(c) Manipulates any part of the body of a woman so as to cause penetration
into the vagina, urethra, anus or any part of body of such woman or
makes her to do so with him or any other person; or

(d) Applies his mouth to the vagina, anus, urethra of a woman or makes her
to do so with him or any other person,

Under the circumstances falling under any of the following seven

descriptions:-

First - Against her will.

Secondly – Without her consent.

Thirdly – With her consent, when her consent has been obtained by putting her
or any person in whom she is interested, in fear of death or of hurt.

Fourthly. – With her consent, when the man knows that he is not her husband
and that her consent is given because she believes that he is another man to
whom she is or believes herself to be lawfully married.

Fifthly – With her consent when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or
through another of any stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that to which she gives consent.

Sixthly – With or without her consent, when she is under eighteen years of age.

Seventhly – When she is unable to communicate consent.

Explanation 1. – For the purposes of this Section, “vagina” shall also include
labia majora.

Explanation 2 – Consent means an unequivocal voluntary agreement when the

women by words, gestures or any form of verbal or non-verbal communication,
communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of
penetration shall not by the reason only of that fact, be regarded as consenting to
the sexual activity.

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Exception 1.- A medical procedure or intervention shall not constitute rape.

Exception 2.- Sexual intercourse or sexual acts by a man with his own wife, the
wife not being under fifteen years of age, is not rape.

The rape is made punishable under Section 376 of the Indian Penal Code.
Section 376 of the Indian Penal Code reads as under;

Section 376(1) Whoever, except in the cases provided for in sub-Section(2),

commits rape, shall be punished with rigorous imprisonment of either
description for a term which shall not be less than seven years, but which may
extend to imprisonment for life, and shall also be liable to fine.

(2) Whoever,-

(a) being a police officer, commits rape

(i) within the limits of the police station to which such police officer
is appointed; or

(ii) in the premises of any station house; or

(iii) on a woman in such police officer’s custody or in the custody of a

police officer subordinate to such police officer; or.

(b) being a public servant, commits rape on a woman in such public servant’s
custody or in the custody of a public servant subordinate to such public
servant; or

(c) being a member of the armed forces deployed in an area by the Central or
a State Government commits rape in such area; or

(d) being on the management or on the staff of a jail, remand home or other
place of custody established by or under any law for the time being in
force or of a women’s or children’s institution, commits rape on any
inmate of such jail, remand home, place or institution; or

(e) being on the staff of a hospital, commits rape on a woman in that hospital;
or

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(f) being a relative, guardian or teacher of, or a person in a position of trust
or authority towards the woman, commits rape on such woman; or

(g) commits rape during communal or sectarian violence; or

(h) commits rape on a woman knowing her to be pregnant; or

(i) commits rape on a woman when she is under sixteen years of age; or

(j) commits rape, on a woman incapable of giving consent; or

(k) being in a position of control or dominance over a woman, commits rape

on such woman; or

(l) commits rape on a woman suffering from mental or physical disability; or

(m) commits rape repeatedly on the same woman.

Shall be punished with rigorous imprisonment for a term which shall not
be less than ten years, but which may extend to imprisonment for life, which
shall mean imprisonment for the remainder of that person’s natural life and shall
also be liable to fine.

Explanation.- For the purposes of this sub-Section,-

(a) “armed forces” means the naval, military and air forces and includes any
member of the Armed Forces constituted under any law for the time being
in force including the paramilitary forces and any auxiliary forces that are
under the control of the Central Government or the State Government.

(b) “hospital” means the precincts of the hospital and includes the precincts
of any institution for the reception and treatment of persons during
convalescence or of persons requiring medical attention or rehabilitation;

(c) “police officer” shall have the same meaning as assigned to the
expression “police’ under the Police act, 1861;

(d) “women’s or children’s institution” means an institution, whether called

an orphanage or a home for neglected women or children or a widow’s

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 home or an institution called by any other name, which is established and
maintained for the reception and care of women or children.

Section 376A. Whoever, commits an offence punishable under sub-

Section (1) or sub-Section (2) of Section 376 and in the course of such
commission inflicts an injury which causes the death of the woman or causes the
woman to be in a persistent vegetative state, shall be punished with rigorous
imprisonment for a term which shall not be less than twenty years, but which
may extend to imprisonment for life, which shall mean imprisonment for the
remainder of that persons’ natural life, or with death.

Section 376B. Whoever has sexual intercourse with his own wife, who is living
separately, whether under a decree of separation or otherwise, without her
consent, shall be punished with imprisonment of either description for a term
which shall not be less than two years but which may extend to seven years, and
shall also be liable to fine?.

Explanation- In this Section, ‘sexual intercourse” shall mean any of the acts
mentioned in clauses (a) to of Section 375.

Section 376C. Whoever, being

(a) In a position of authority or in a fiduciary relationship; or

(b) A public servant; or

(c) Superintendent or manager of a jail, remand home or other place of

custody established by or under any law for the time being in force, or a
women’s or children’s institution; or on the management of a hospital or
being on the staff of a hospital abuses such position or fiduciary
relationship to induce or seduce any woman either in his custody or under
his charge or present in the premises to have sexual intercourse with him,
such sexual intercourse not amounting to the offence of rape, shall be
punished with rigorous imprisonment of either description for a term
which shall not be less than five years, but which may extend to ten years,
and shall also be liable to fine.

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Explanation 1. In this Section, “sexual intercourse” shall mean any of the acts
mentioned in clauses (a) to (d) of Section 375.

Explanation 2. For the purposes of this Section, Explanation 1 to Section 375

shall also be applicable.

Explanation 3.- “Superintendent”, in relation to a jail, remand home or other

place of custody or a women’s or children’s institution, includes a person
holding any other office in such jail, remand home, place or institution by virtue
of which such person can exercise any authority or control over its inmates.

Explanation 4.- The expressions “hospital” and “women’s or children’s

institution” shall respectively have the same meaning as in Explanation to sub-
Section (2) of Section 376.

Section 376D. Where a woman is raped by one or more persons constituting a

group or acting in-furtherance of a common intention, each of those persons
shall be deemed to have committed the offence of rape and shall be punished
with rigorous imprisonment for a term which shall not be less than twenty years,
but which may extend to life which shall mean imprisonment for the remainder
of that person’s natural life, and with fine:

Provided that such fine shall be just and reasonable to meet the medical
expenses and rehabilitation of the victim:

Provided further that any fine imposed under this Section shall be paid to
the victim.

Section 376E. Whoever has been previously convicted of an offence punishable

under Section 376 or Section 376A or Section 376D and is subsequently
convicted of an offence punishable under any of the said Sections shall be
punished with imprisonment for life which shall mean imprisonment for the
remainder of that person’s natural life, or with death.

In fact in Sakshi’s169 the petitioner under Article 32 of the Constitution,

sought inter alie, in view of increase of sexual violence against women and

169
Sakshi v. Union of India and ors. (2004) 5 SCC 518.

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specially children, an enlarged definition of rape under Section 375 Indian Penal
Code to include all forms of penetration such as penile/vaginal penetration,
penile/oral penetration, penile/anal penetration, finger/vaginal and finger/anal
penetration and object/vaginal penetration.

No doubt Hon’ble the Apex Court had dismissed the writ petition on the
contention that it is well-settled principle that the intention of the legislature is
primarily to be gathered from the language used, which means that attention
should be paid to what has been said as also to what has not been said. As a
consequence a construction which requires for its support addition or
substitution of words or which results in rejection of words as meaningless has
to be avoided. It is contrary to all rules of construction to read words into an Act
unless it is absolutely necessary to do so. Similarly it is wrong and dangerous to
proceed by substituting some other words for words of the statute. It is equally
well settled that a statute enacting an offence or imposing a penalty is to be
strictly construed. The fact that an enactment is a penal provision is in itself a
reason for hesitating before ascribing to phrases used in it a meaning broader
than that they without ordinarily bear.

No doubt, the petition was dismissed but Hon’ble Apex Court was kind
enough to issue the following direction in para no. 34 of the judgement-

(1) The provisions of sub-Section (2) of Section 327 Cr.P.C. shall, in addition
to the offences mentioned in the sub-Section, also apply in inquiry or trial
of offences under Sections 354 and 377 IPC.

(2) In holding trial of child sex abuse or rape:

(a) A screen or some such arrangements may be made where the

victim or witnesses (who may be equally vulnerable like the
victim) do not see the body or face of the accused;

(ii) The questions put in cross-examination on behalf of the accused,

insofar as they relate directly to the incident, should be given in

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 writing to the presiding officer of the court who may put them to
the victim or witnesses in a language which is clear and is not
embarrassing;

(iii) The victim of child abuse or rape, while giving testimony in court,
should be allowed sufficient breaks as and when required.

After Nirbhaya incident, the Parliament wake up under pressure of public

and media to frame a law as demanded by the petitioner in Sakshi’s case.

But the law drafted seems to be a hurriedly enacted law. Sometimes, it

seems that certain rights of the women have been ignored or have not been taken
cared of while drafting this law. I am quoting an example. Sodomy with wife
was a punishable offence before this enactment. The husband was given the
liberty to have the sexual intercourse with the wife even without consent of the
wife, the wife being above 16 years of age. But the anal penetration is included
in the definition of rape under Section 375 of the Indian Penal Code. The result
is if the husband has anal intercourse with his wife even without the consent of
the wife, the wife not being under 15 years of age, it will not be the rape.
Explanation to Section 375 specifically provides that sexual intercourse or
sexual acts by a man with his own wife, the wife not being under 15 years of
age, is not rape. Meaning thereby, not only the veginal penetration but any act of
sexual intercourse even without the permission and consent of wife, wife being
above 15 years of age is not an offence. This shows that wife above 15 years of
age is property of the husband and he can use for sexual purposes on his whims.
This concept should have been taken cared of while drafting this law. In fact,
this law was drafted considering the fact that rape is committed by outsiders only
and for the purpose the definition of rape was so extended that it goes against the
wife in the matrimonial relations. This is the problem of legislature, judiciary as
said in Sakshi’s case should not interfere.

The Criminal Law Amendment Act, 2013 also make voyeurism as an

offence. The voyeurism is defined and made punishable under Section 354(c) of
the Indian Penal Code which reads as under:

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 Section354C. Any man who watches, or captures the image of a woman
engaging in a private act in circumstances where she would usually have the
expectation of not being observed either by the perpetrator or by any other
person at the behest of the perpetrator or disseminates such image shall be
punished on first conviction with imprisonment of either description for a term
which shall not be less than one year, but which may extend to three years, and
shall also be liable to fine, and be punished on a second or subsequent
conviction, with imprisonment of either description for a term which shall not be
less than three years, but which may extend to seven years, and shall also be
liable to fine.

Explanation 1. – For the purpose of this Section, “private act” includes an act of
watching carried out in a place which, in the circumstances, would reasonably be
expected to provide privacy and where the victim’s genitals, posterior or breasts
are exposed or covered only in underwear, or the victim is using a lavatory; or
the victim is doing a sexual act that is not of a kind ordinarily done in public.

Explanation 2.- Where the victim consents to the capture of the images or any
act, but not to their dissemination to third persons and where such image or act is
disseminated, such dissemination shall be considered an offence under this
Section.

Likewise stalking has also been defined and made punishable in 2013
Criminal Law (Amendment) Act. Section 354(D) speaks as under:

Section 354D.(1)- Any man who (i) Follows a woman and contacts, or attempts
to contact such woman to foster personal interaction repeatedly despite a clear
indication of disinterest by such woman; or (ii) Monitors the use by a woman on
the internet, email or any other form of electronic communication.

Commits the offence of stalking:

Provided that such conduct shall not amount to stalking if the man who
pursued it proves that

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(i) It was pursued for the purpose of preventing or detecting crime and the
man accused of stalking had been entrusted with the responsibility of
prevention and detection of crime by the State; or

(ii) It was pursued under any law or to comply with any condition or
requirement imposed by any person under any law, or

(iii) In the particular circumstances such conduct was reasonable and justified.

(2) Whoever commits the offence of stalking shall be punished on first

conviction with imprisonment of either description for a term which may extend
to three years, and shall also be liable to fine; and be punished on a second or
subsequent conviction, with imprisonment of either description for a term which
may extend to five years, and shall also be liable to fine”.

Acts of sexual harassment has been redefined and made more elaborate.
Section 354A of the 2013 Criminal Law (Amendment), Act provides as under:-

Section 354A.(1) A man committing any of the following acts

(i) Physical contact and advances involving unwelcome and explicit sexual
overtures; or

(ii) A demand or request for sexual favours; or

(iii) Showing pornography against the will of a woman; or

(iv) Making sexually coloured remarks, Shall be guilty of the offence of

sexual harassment.

(2) Any man who commits the offence specified in clause (i) or clause (ii) or
clause (iii) of sub-Section (1) shall be punished with rigorous imprisonment for a
term which may extend to three years, or with fine, or with both.

(3) Any man who commits the offence specified in clause (iv) of sub-Section (1)
shall be punished with imprisonment of either description for a term which may
extend to one year, or with fine, or with both.

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Human Trafficking is also punishable; disclosure of identity of prosecutrix
has also been made punishable

Section 370 of the Indian Penal Code define human trafficking as follows acid
throwing has been made an independent offence under Section 326(A) and
326(B) which reads as under:

Section 326A.- Whoever causes permanent or partial damage or deformity to, or

burns or maims or disfigures or disables, any part or parts of the body of a
person or causes grievous hurt by throwing acid on or by administering acid to
that person, or by using any other means with the intention of causing or with the
knowledge that he is likely to cause such injury or hurt, shall be punished with
imprisonment of either description for a term which shall not be less than ten
years but which may extend to imprisonment for life, and with fine.

Provided that such fine shall be just and reasonable to meet the medical
expenses of the treatment of the victim:

Provided further that any fine imposed under this Section shall be paid to
the victim.

Section 326B.- Whoever throws or attempts to throw acid on any person or

attempts to administer acid to any person, or attempts to use any other means,
with the intention of causing permanent or partial damage or deformity or burns
or maiming or disfigurement of disability or grievous hurt to that person, shall be
punished with imprisonment of either description for a term which shall not be
less than five years but which may extend to seven years, and shall also be liable
to fine.

Explanation 1. – For the purposes of Section 326A and this Section, “acid”
includes any substance which has acidic or corrosive character or burning nature,
that is capable of causing bodily injury leading to scars or disfigurement or
temporary or permanent disability.

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Explanation 2.- For the purposes of Section 326A and this Section, permanent or
partial damage or deformity shall not be required to be irreversible.

Considering the gravity of the crime of acid throwing Hon’ble the Apex
Court in Laxmi v. Union of India 170 , has given elaborate directions to the
Central Government and the State Governments. On 06.02.2013, a direction was
given to the Home Secretary, Ministry of Home Affairs associating the
Secretary, Ministry of Chemical and Fertilizers to convene a meeting of Chief
Secretaries/concerned Secretaries of the State Governments and the
administrators of the Union Territories, interalia to discuss the following
aspects-

(i) Enactment of appropriate provision for effective regulation of sale of acid

in the States/Union Territories.

(ii) Measures for the proper treatment, after care and rehabilitation of the
victims of acid attack and needs of acid attack victims.

(iii) Compensation payable to aid victims by the State/or creation of some

separate fund for payment of compensation to the acid attack victims.

On 18.7.2013, Hon’ble Apex was kind enough to issue the following

directions which are given in para no. 7 of the judgment-

7. In the States/Union Territories, where rules to regulate sale or acid and other
corrosive substances are not operational, until such rules are framed and made
operational, the Chief Secretaries of the concerned States/Administrators of the
Union Territories shall ensure to compliance of the following directions with
immediate effect:

(i) Over the counter, sale of acid is completely prohibited unless the seller
maintains a log/register recording the sale of acid which will contain the
details of the person(s) to whom acid (s) is/are sold and the quantity sold.
The log/register contains the address of the person to whom it is sold.

170
writ petition (criminal) no. 129 of 2006 decided on 18.07.2013

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(ii) All sellers shall sell acid only after the buyer has shown:

(a) A photo ID issued by the Government which also has the address
of the person.

(b) Specifies the reason/purpose for procuring acid.

(iii) All stocks of acid must be declared by the seller with the concerned Sub-
Divisional Magistrate (SDM) within 15 days.

(v) No acid shall be sold to any person who is below 18 years of age.

(vi) In case of undeclared stock of acid, it will be open to the concerned SDM
to confiscate the stock and suitably impose fine on such seller up to Rs.
50,000/-

(vii) The concerned SDM may impose fine up to Rs. 50,000/- on any person
who commits breach of any of the above directions.

In para no. 8 of the judgment Hon’ble the Apex Court has given certain
directions to keep and store acid by the educational institutions as follows:

8. The educational institutions, research laboratories, hospitals, Govt.

Departments and the department of Public Sector Undertakings, who are
required to keep and store, acid, shall follow the following guidelines:

(i) A register of usage of acid shall be maintained and the same shall be filed
with the concerned SDM.

(ii) A person shall be made accountable for possession and safe keeping of
acid in their premises.

(iii) The acid shall be stored under the supervision of this person and there
shall be compulsory checking of the students/personnel leaving the
laboratories/place of storage where acid is used.

Hon’ble the Apex Court has also given the guidelines on framing of rules
by Central and State Governments. The provision for compensation of at least
three lakhs by the state government/union territories in addition to the

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rehabilitation which includes a series of plastic surgeries shall be paid to the acid
throwing victims. Out of three lakhs, two lakhs shall be paid immediately to the
victim.

Throwing acid is the most heinous crime which not only degrades the
face and the physic of women/girls but also has the great psychological and
mental impact. Considering this issue Hon’ble Apex Court has also directed to
publicize the scheme adopted by every State on acid throwing victim.

Some procedural aspects have also been looked into. Proceedings in

camera, avoid the face of the accused during recording of evidence when the
prosecutrix is a minor and presumption of consent of sexual intercourse when
the woman expresses about not consent are the important procedural parts which
have been streamlined. An act of throwing or administering acid or an attempt to
throw or administer acid which may reasonably cause the apprehension that
grievous hurt will otherwise be the consequence of such act afford an
opportunity to exercise the right of private defence to cause the death of
assailant.

Thus, it will be right to say that it is the beginning of a new era of

criminal jurisprudence particularly in the matters of crimes against woman
relating to sexual acts. I will not hesitate to write few words about the
implementation of amended provisions of newly enacted and amended laws. At
least half dozens of amendments have been made in criminal law with in twenty
years without proper implementation. The time has come that every component
of the judicial system must be committed for the proper implementation of the
amended provisions.

Role of District Courts in Dealing with the cases relating to the crimes
against women:

Regarding judicial behavior in the matters of crimes against women in

India, recently Hon’ble the Apex Court171 has held-

171
Shyam Narain v. State, NCT of Delhi, (2013) 7 SCC 77.

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 “Almost for the last three decades, the Supreme Court has been
expressing its agony and distress pertaining to the increased rate of crimes
against women. The eight year old girl (brutally raped by appellant), who was
supposed to spend time in cheerfulness, was dealt with animal passion and her
dignity and purity of physical frame was shattered. The plight of the child and
the shock suffered by her can be well visualized. The torment on the child has
the potentiality to corrode the poise and equanimity of any civilized society. The
age-old wise saying that ‘child is a gift of the providence’ enters into the realm
of absurdity. The young girl, with efflux of time, would grow with a traumatic
experience, an unforgettable shame. She shall always be haunted by the memory
replete with heavy crush of disaster constantly echoing the chill air of the past
forcing her to a state of nightmarish melancholia. She may not be able to assert
the honour of a woman for no fault of hers. When she suffers, the collective at
large also suffers”.

The Apex Court in another case172 has also viewed that-

“It is a matter of great shame and grave concern that brides are burnt or
otherwise their life sparks are extinguished by torture, both physical and mental,
because of demand of dowry and insatiably greed and sometimes, sans demand
of dowry, because of the cruelty and harassment made it out to the nascent
brides treating them with total incentivity destroying their desire to live and
forcing them to commit suicide; a brutal self humiliation of life”.

The court173 further said that-

“Respect for reputation of women in society shows the basic civility of a

civilized society. No member of society can afford to conceive the idea that he
can create a hollow in the honour of women. Such thinking is not only
lamentable but also deplorable. It would not be an examination to say that the

172
Gurnaib Singh v. State of Punjab (2013) 7 SCC 108.
173
Shyam Narain v. State (NCT of Delhi) (2013) 7 SCC 77.

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thought of sullying the physical frame of a woman is the demolition of the
excepted civilized norm.

On position of bride in the Indian families, The Court explained-

Respect of a bride in her matrimonial home glorified the solemnity and

sanctity of marriage, reflects the sensitivity of a civilized society and, eventually
aptomized her aspiration, dreamt of in nuptial bliss. But, the manner in which
sometimes the brides are treated in many a home by the husband, in-laws and
relatives creates a feeling of emotional numbness in the society. Daughter-in-law
is to be treated as a member of the family with warm and effect and not as a
stranger with despicable and ignoble indifference. She should not be treated as a
house-maid. No impression should be given that she can be thrown out from her
matrimonial home at any time.174

It shows the sensitiveness and responsiveness of higher Courts, the

Supreme Court and the High Courts, regarding the crimes against women. But
the District Judiciary, in majority of cases in India is still lacking in delivery
justice, whereas, the District Judiciary is the ultimate judiciary for the majority
of the people. Without disturbing our judicial conscious on the constraints and
bottlenecks before the District Judiciary, we are suggesting some mechanisms to
ensure justice delivery by the District Courts in the matters of crimes against
women.

1. Justice Verma Commission in its report on Criminal Law (Amendment)

Act, 2013 in the recommendations and suggestions part has mentioned
that available personnel of the judiciary and the infrastructure with few
systematic changes can at least reduce heavy burden of arrears in Courts
contributing to delays in enforcing the law of land. It means, if a scientific
mechanism is adopted by the Judges in District Courts, the present
strength of the Judges and the infrastructure provided to them shall be
sufficient to address the problem of arrears and delay. Now question is

174
Gurnaib Singh v. State of Punjab (2013) 7 SCC 108.

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 what should be the systematic and scientific mechanism to be adopted by
the District Judiciary. I am mentioning the following scientific
mechanism to be adopted by the Judges in District Courts-

2. (a) Atmosphere of the Courts- It is the concept of Total Quality

Management Technique. The atmosphere of the Courts should be
changed by placing the things and articles in order in the court rooms,
chambers, retiring rooms and offices. If the documents, files, papers and
articles are placed in order to make the court and offices comfortable and
conducive for proper working, it will help the Judges in increasing the
judicial productivity. For the application of Total Quality Management
Technique, it is not necessary to deman infrastructure as the atmosphere
of the Court can be improved with infrastructure provided within the
present constraints and bottlenecks. Hon’ble Justice U.C. Dhyani in His
Lordship’s speech in Administrative Conference of all the Judicial
Officers in Dehradun has been kind enough to refer an anecdote that
atmosphere prevailing in civil courts is worse than a merchant shop.
Thus, it is necessary to improve the atmosphere and management of the
Courts. Broken or without arms chairs, torn papers and unattended
documents in bulk are some of the common special features prevailing in
civil courts. By adopting the Total Quality Management Techniques, for
which elaborate training has been sanctioned and approved by Hon’ble
the High Court of Uttarakhand for all the Judicial officers, the courts may
overcome with this problem by improving atmosphere, and consequently,
the judicial productivity is bound to improve.

(b) Every Judicial Officer has to give up the casual, technical and
traditional approach while working in Courts dealing with the cases
relating to crimes against women. In the matters of remand, bail,
recording of evidence and during trial a Judge should be very attentive,
cautious and innovative. Polite in behavior but firm in action policy is

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 required for implementation of amended provisions of Criminal law. We
have experienced it that legislature has amended the criminal laws on
number of occasions. But, the amended provisions of criminal law are not
properly implemented by the Courts due to its mechanical and technical
approach. It is seen that in District Court’s Judges usually become harsh
in language but polite in action, on the other hand, the Judges should be
very polite in language, but firm in action. Very firmly, but politely, the
amended provisions of criminal law should be implemented.

(c) Fair trial includes the fair investigation. No doubt, as per the criminal
jurisprudence, the Magistrates and the Judges dealing with the criminal
cases cannot interfere in the working of Investigating Officers. But, the
Magistrates and the Judges can, up to some extent, control the
investigation in the interest of justice (fair investigation). The Magistrates
and the Judges are empowered by law (including judge made law) to call
the interim reports from Investigating Officers on a particular point or
issue even during trial. Due to the casual approach, the judges and
Magistrates are not exercising this vested power to improve the quality of
investigation which may ensure the fair trial.

(d) Role of Criminal Courts in forensic matters and evidence is very

important. The recent two judgments by Hon’ble High Court of
Uttarakhand at Nainital175, Janardan Tewari v. State of Uttarakhand176
and, Amar Singh v. State of Uttarakhand,177 shows the importance of
forensic science in criminal justice administration system. On the basis of
negligence of court concerned and investigating agencies in getting DNA
profile of skeleton in one case and blood test of injured and deceased in
another case, the defence successfully establish a reasonable doubt in
favour of accused Hon’ble High Court acquitted the accused persons in

175
In Criminal Appeal No. 133/2010
176
Criminal Appeal No. 187/2010
177
Decided on 18.07.2013 and 28.05.2013 respectively

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 both of the cases. The application of forensic science is very well possible
during trial by the Magistrates and the Judges. It is only possible when the
Judges and the Magistrates are involving in the trial process and are
attentive and innovative.

3. Adoption of scientific mechanism of adjudication- Hon’ble the Chief

Justice of High Court of Uttarakhand at Nainital has given a very soft
target to the Judicial Officers of the State. The target is to adjudicate all
the five years old cases by the end of this year. This target was/is very
much achievable, if the Judges have given up the mechanical and
traditional approach. On the basis of pendency of the Courts, year wise
breakup, staff provided to the Courts and other constraints before the
courts, every criminal court must adopt a mechanism in writing under
intimation to the District Judge/Hon’ble High court for adjudication of
cases in a scientific manner. It is not a difficult task, if a proper beginning
is made by the Judges. I am hopeful that if transparent, scientific
mechanism is adopted the target of deciding all the cases more than two
years old within two years is achievable. While adopting the scientific
mechanism priority criteria can also be taken into consideration.

The priority criteria may be based on critically old cases, old cases,
cases relating to crimes against women and children and the cases relating
to the senior citizens. One the beginning is made the target will be very
much achievable on self-evaluation on every 15 days.

4. An innovative Judge- Working in Courts and enjoying working in Courts

are two different concepts. It is the enjoyment of work by a judge in the
Court which makes him an innovative personality. The law cannot be
statistic. It is a living organism. To cater the need of society under the
changing circumstances, a Judge should never hesitate to stretch the law
within the legally permissible limits, to reach to the goal of justice
delivery. An innovative Judge only has the capacity to stretch the law in

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 its proper implementation under the changing circumstances of society to
ensure the justice delivery. As a innovative Judge, he should be very
sensitive in his day-to-day working. He should be very attentive in all the
proceedings. May be bail order, remand order, recording of evidence,
invoking jurisdiction under Section 165 of Indian Evidence Act, invoking
jurisdiction of under Section 319 of Code of Criminal Procedure or
Section 311 of the Code of Criminal Procedure, a judge has to be very
cautious. A Judge in criminal matters has the very casual approach while
recording the statement of accused under Section 313 Cr.P.C. A Judge
should always have the eyes open throughout the trial of a case. There are
certain amendments in criminal law which should be implemented very
strictly. The provisions of Criminal Law (Amendment) Act, 2013
regarding the substantive law and the procedure of trial in the cases of
crimes against women have to be very strictly implemented.

A Judge has to be very sensitive for the rights of women.

Generally, rights of women are neglected and compromised by the
Courts. The violation of provisions of law is seen particularly in the
adjournment of cases. It should be avoided.

5. A dedicated Judge- The goal of Courts is to do justice through

adjudication. Meaning thereby, to reach to the truth is the goal, whereas,
disposal of cases is the process to reach to the truth. Hon’ble the Chief
Justice in Administrative Conference has shown His Lordship’s concern
about the working of certain Courts given much above the out turn
prescribed by Hon’ble the High Court, selecting the very soft targets.
Thus, out turn syndrome should be converted to dedicated work. It is only
possible by implementing the concept of social, ethical and legal training
to the Judges. The concept of social, ethical and legal training means the
law should be implemented by a man of ethics by implementing it strictly
to reach to the destination of justice.

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6. Developing Feedback Mechanism- It is necessary to get the feedback of
working of the judge by himself. Thus, every judge should develop a
mechanism for taking self feedback. Feedback provides an opportunity to
the judge to correct himself. Manner of getting feedback may be different
which may depend on the circumstances of each court.

7. The discipline in the Courts- This means the regulation of the behavior of
a judge as per legal, social and ethical norms. A judge should properly
and productively regulate his behavior in courts and outside the courts.
Discipline is a quality inbuilt and linked with the soul of a person. If it is
not inbuilt, it can be developed through a scientific training. That is the
reason, Hon’ble the Apex Court has directed a lengthy scientific judicial
education and training programme for the judges, at the time of
recruitment and periodically, as refresher courses. Discipline is a concept
and subject of judicial education having little concern with the judicial
training. A judge should be self disciplines, disciplines in family affair, in
economic affairs, in social affairs and in ethical affairs. If it is, I am sure
there shall be no occasion to discuss the integrity of the judges. Nobody
even can think of any problem of integrity with any person, who is
disciplined in all vocations of life.

Discipline is also a concept of total quality management. It is very easy

and safe to say that one should be disciplined, but difficult to learn the habit of
being discipline. Time management is more important and time management can
only be learnt through the healthy eating habits. Ultimate crux of being
discipline is that first of all a judge should be disciplined in food habits. Without
going to the controversy whether one should take vegetarian or non-vegetarian, I
will prefer to mention that one should eat the food material in the natural form,
as made by Almighty God. Eskimos cannot survive on vegetarian food, but they
are eating the non-vegetarian food material as such provided by God. Converting
the food and change in its quality by external acts, is not a good food. I am sure,

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unhealthy food will make man indiscipline. In fact, every person is a judge for
him to decide what food is good for his health. A healthy person only can
manage to be disciplined. The above concepts for me are not the platonic justice
which is unachievable. The concepts are very much achievable. Every person is
having some inbuilt quality and that should be developed by a scientific, social,
ethical and legal training by Judicial Academies.

If the above concepts are implemented by the Courts, I am sure the

situation of District Courts relating to the crimes against women is bound to
improve. Disposing of the cases relating to the crimes against women speedily
will be attributed to “Damini”, raped and murdered in Delhi bus incident.

New Cases:

In the case of Shiv Lal v. State of Rajasthan Through PP 178 , it is

contended that the respondent-wife filed a criminal complaint in the court of
Metropolitan Magistrate, Jaipur, on various allegations including demand of
dowry. The police thereafter registered an F.I.R. for offence under Sections
498A, 376, 377, 313, 323, 406 and 120B of the Indian Penal Code against
accused-petitioner and other family members. During pendency of the aforesaid
criminal trial, complainant filed an application before the concerned court that
the parties have settled the dispute and that she does not want to press that
complaint against the accused- petitioner. The learned trial court, vide impugned
order dated 15.06.2016, partly allowed the application by compounding the
offence under Section 406 Indian Penal Code, however, refused to compound
the offence under Section 498A Indian Penal Code and Section 4 of the Dowry
Prohibition Act. Hence, this criminal miscellaneous petition.

Heard learned counsel for the parties and perused the material on record.
The question that fell for determination before the Supreme Court was about the
ambit of the inherent powers of the High Courts under Section 482 of the Code

178
Criminal Misc. Petition No. 3132/2016 dated 6.09.2016, in the High Court of Rajasthan (Jaipur
Bench)

136
of Criminal Procedure read with Articles 226 and 227 of the Constitution of
India to quash criminal proceedings. The Supreme Court therein observed that in
matrimonial disputes of this kind have been on considerable increase in recent
times resulting in filing of complaints by the wife under Sections 498A and 406,
not only against the husband but his other family members also. The Supreme
Court held that the object of introducing Chapter XX-A containing Section
498Ain the Indian Penal Code was to prevent the torture to a woman by her
husband or by relatives of her husband, and Section 498A was added with a
view to punishing a husband and his relatives who harass or torture the wife to
coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-
technical view would be counter-productive and would act against interests of
women and against the object for which this provision was added. There is every
likelihood that non-exercise of inherent power to quash the proceedings to meet
the ends of justice would prevent women from settling earlier, which is not the
object of the provision.

In the case of State of Rajasthan v. Prahlad Ram179, the facts of the

case in nutshell are that complainant Atma Ram submitted a written report on
21.03.2014 in Police Station Ramsar stating therein that his daughter Hastu was
married to accused Prahlad Ram about three years ago according to Hindu rites
and since then she has been residing with her husband Prahlad Ram at her
matrimonial home at Taraniyon Ki Dhani, Setrau. However, her husband, elder
mother-in-law (badi saas), father-in-law and brother-in-law used to harass her
for dowry. She had also come home and told him that her in-laws are demanding
money and harassing her for dowry. On 20.03.2014 Gemra Ram, Lekhu Ram,
Smt. Fanti and Prahlad Ram together killed his daughter and threw her in
underground water-tank. At 6.00 PM in the evening they were informed by
Ramsar Police Station and they came on the spot. When dead body was taken
out injury marks were seen on the body. Police was asked to take action.

179
D.B. Criminal Leave to Appeal No. 245/2014, decided on 16.04.2015 in the High Court of Rajasthan
(Jodhpur Bench).

137
Thereupon, FIR for offences under Sections 498A, 304-B Indian Penal Code
was registered.

The accused Prahlad Ram husband of the deceased was charged for
offences and produced documents Exhibits P1 to P23. The accused in his
statement under Section 313 Code of Criminal Procedure denied the allegations.
He, however, did not lead any evidence in defence.

In the instant case, the prosecution had produced Atma Ram who while
deposing before the court resiled from his statement that the accused had
harassed his daughter for dowry. He, in fact, stated that after marriage his
daughter used to visit his home but she never told him that accused Prahlad Ram
used to harass her for dowry. He has further stated that, in fact, she had told him
that she was happy in her in-laws’ house.

There was categorical suggestion to all the prosecution witnesses that the
accused Prahlad used to reside at Jodhpur where he had contracted another
marriage and the deceased was not happy with her marital life, on account of
which she may have committed suicide.

It, thus, appears that as all the prosecution witnesses have categorically
denied this suggestion, there is absolutely no scope for attracting provisions of
Section 113-A of the Evidence Act or for abetment to suicide. In the instant case
none of the relatives even remotely supported the prosecution case, while
deposing in the witness box.

In the instant case, as already discussed the prosecution has not been able
to bring home any cogent evidence so as to prove involvement of the accused in
the alleged offence. There is no evidence whatsoever to sustain the prosecution
case which has fallen like a pack of cards.

Therefore, the Court has no hesitation to hold that the view taken by the
Trial Court in acquitting the accused is not only plausible but appears to be the
only one possible under the facts and circumstances of the case. Consequently,

138
there is no merit in the instant application for Leave to Appeal and the same is
hereby dismissed.

In the case of Prasoon Joshi v. Abhilasha Sharma 180 , the Criminal

Misc. Petition had been filed by the accused petitioners under Section 482
Cr.P.C. for quashing of the proceedings in Criminal Case pending before the
Court of Metropolitan Magistrate No. 12 Jaipur City under Sections 498A and
406 Indian Penal Code and Section 4 of the Dowry Prohibition Act in FIR No.
165 of 2011 registered at Police Station Mahila Thana South Jaipur City. Facts
as alleged in Criminal Misc. Petition are that the petitioner No. 1 Prasoon was
married to respondent No.1 Abhilasha Sharma on 14.2.2009 at Pandit Paradise
New Sanganer Road Jaipur according to Hindu customs. After some time
matrimonial disputes arose between husband and wife and due to the dispute
between the parties respondent No.1 lodged an FIR in the Police Station Mahila
Thana South Jaipur against the accused petitioners and the police after due
investigation filed the charge-sheet against the accused petitioners.

In the petition it had been stated that the accused petitioners and the
respondent No.1 had now settled their all marital disputes among them and they
had filed a compromise deed before the Trial Court on 16.12.2013 and the same
was attested by the Trial Court for the offence under Section 406 Indian Penal
Code as this Section was only compoundable with the permission of the court
dated 16.12.2013.

In the instant case, the Court went through the application for
compromise, compromise deed and the order dated 16.12.2013 passed by the
Trial Court refusing to compound the offence under Section 498A, Indian Penal
Code and Section 4 of the Dowry Prohibition Act. The application was signed by
counsel for both the parties and the compromise deed has been signed by the
accused petitioners and the respondent No. 1. The accused petitioner No.1 and
the complainant respondent No. 1 had filed an application under Section 13(B)

180
2014 CriLJ 3656, 2015 (1) RLW 81 (Raj.).

139
of the Hindu Marriage Act for dissolution of marriage and along with the
application also filed a draft of Rs. 10,00,000/- (Ten lacs) towards dowry articles
and permanent alimony. The criminal case filed by the respondent No. 1 is
between her husband and mother-in-law i.e. completely private in nature and as
per the judgments of the Apex Court looked into ends of justice would be met in
allowing the petition under Section 482, Code of Criminal Procedure in the
inherent jurisdiction of this Court and the Trial Court is directed to decide the
application for compounding of offence under Section 498A, Indian Penal Code
and Section 4 of the Dowry Prohibition Act and attest the compromise deed filed
by the parties. For the reasons mentioned above, the criminal misc. petition is
allowed. The Trial Court is directed to attest the compromise deed in respect of
Section 498A, Indian Penal Code and Section 4 of the Dowry Prohibition Act
and the criminal proceedings may be dropped against the accused petitioners.

In the case of Shimbhu Dayal and Ors. v. State of Rajasthan181, the

accused-appellants had preferred this appeal under Section 374, Code of
Criminal Procedure (Cr.P.C.) against the judgment of conviction and order of
sentence dated 15.2.2005 passed by learned Special Judge (Women Atrocities
and Dowry Cases), Jaipur City, Jaipur in Sessions case, whereby each of the
appellants had been convicted for the offences under Sections 498A, 201 and
304-B, Indian Penal Code and had been sentenced to one year rigorous
imprisonment with a fine of Rs. 500/-, in default of payment of fine to further
undergo one month rigorous imprisonment for the offence under Section 498A,
IPC, sentenced to one year rigorous imprisonment with a fine of Rs. 500/-, in
default of payment of fine to further undergo one month rigorous imprisonment
for the offence under Section 201 Indian Penal Code and sentenced to ten years
rigorous imprisonment with a fine of Rs. 1,000/-, in default of payment of fine to
further undergo two months rigorous imprisonment for the offence under
Section 304-B, Indian Penal Code.

181
2012(1) ILR (Raj.) 329.

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 The brief relevant facts for the disposal of this appeal are that on 5.7.2003
the complainant Babulal Sharma submitted a written report before
Superintendent of Police, Jaipur District, Jaipur stating therein that his daughter
Mintu @ Mohini was married to appellant Shimbhu Dayal on 22.2.2002 and at
the time of marriage sufficient dowry was given, but to them the in-laws of his
daughter were not satisfied with the dowry given and since after her marriage
they harassed continuously her in for want of dowry and when her daughter,
after some days of marriage, came to her parental house she told that her mother-
in-law is complaining that the marriage was not performed according to their
expectations. In the report, it was also stated that when her daughter was
pregnant, her mother-in-law forced her to do heavy household work and when
the in-laws complained about that, they assured that in future no such complaint
would happen. It was also stated in the report that the in-laws of her daughter
were also not satisfied with the gifts given at the ceremony of ‘Kua Pujan’ of the
newly born child and appellant Shimbhu Dayal demanded Rs.45,000/- by saying
that they were expecting that at the time of marriage Rs.1,50,000/- would be
given in cash but that expectation was not fulfilled.

It was also stated in the report that on 29.6.2003 he received an

information about serious condition of his daughter and when he alongwith of
his some relatives reached at the matrimonial home of his daughter and when
they saw their daughter’s body, they suspected that she had been poisoned. On
the basis of written complaint lodged by the complainant, FIR for the above
offences was registered at Police Station Jamvaramgarh, Jaipur and after usual
investigation charge-sheet was filed against the appellants. The learned Trial
Court framed relevant charges against the appellants and in support of charge,
the prosecution produced oral as well as documentary evidence whereas in
examination under Section 313Code of Criminal Procedure each of the
appellants denied prosecution allegation and evidence. The appellants in their
defence examined four witnesses. The learned Trial Court after evaluating and
appreciating the evidence available on record and hearing both the parties,

141
convicted and sentenced the appellants by the impugned judgment and order
dated 15.2.2005 in the manner as has been stated hereinabove. Hence, the instant
appeal.

Although, during trial FSL report was not produced, but the FSL report
available on record shows the ash and bones sent for analysis gave negative test
for metallic poison. This clearly shows that the suspicion of complainant was
without any basis.

On the other hand, learned Public Prosecutor by supporting the impugned

judgment and order had submitted that soon after marriage the deceased was
continuously harassed and subjected to cruelty in connection with demand of
dowry and on the last occasion appellant Shimbhu Dayal, who is the husband of
the deceased, demanded Rs. 45,000/- as dowry by complaining that they were
expecting that Rs. 1,50,000/- would be given in cash at the time of marriage but
that was not done. The evidence available on record reveals that complainant
and his near relatives on 29.6.2003 itself immediately went to police station
concerned for lodging report, but the SHO did not receive the report and he sent
them back saying firstly they attend funeral of the deceased. It was also
submitted that written report shows that it was submitted on 30.6.2003 before
Superintendent of Police but it reached in the police station concerned on
5.7.2003 upon which formal FIR was registered.

The Court considered the submissions made on behalf of learned counsel

for the respective parties, gone through the record made available to it, relevant
legal provision and the case law cited before the court.

In the present case from the evidence available on record, it cannot be

convincingly held that any demand of dowry in connection with marriage was
ever made by the appellants or any of them. As regards heavy house hold it
cannot amount to harassment or cruelty by the reason that it is a natural
phenomena in families belonging to rural areas. The evidence available on
record shows that both parties belong to agricultural families and it is very usual

142
in such families that female members perform works like cutting of grass in
fields, bringing water from well etc. On the basis of evidence on record at the
most, it can be held that on the Occasion of birth of son, demand of gifts was
made and appellants were not fully satisfied with the quality of gifts given at the
ceremony of ‘Kua Pujan’. I am of the view that even if such demand was made
and appellants were not satisfied with the gifts given, it does not amount to
demand of dowry in connection with marriage as held by Hon’ble Apex Court in
the above case. Only by the reason that the death occurred within seven years of
marriage at the matrimonial home, it cannot be held that the deceased was
subjected to cruelty or harassment in connection with any demand of dowry. The
presumption under Section 113-B of the Indian Evidence Act can arise only
when prosecution is able to show that soon before death there was cruelty or
harassment, only in mat case presumption under Section 113-B can operate.

The fact of delay in lodging the report also makes the prosecution case
doubtful. The formal FIR was registered at Police Station Jamvaramgarh on
5.7.2003 on the basis of written report which was submitted before
Superintendent of Police, Jaipur District, Jaipur.

So far as offence under Section 498A Indian Penal Code is concerned, I

am of the firm view that on consideration of the evidence available on record, it
cannot be held that offence punishable under this provision is made out.

On the basis of evidence, at the most it can be held that the demand of Rs.
45,000/- was made by the appellant Shimbhu Dayal himself. The appellant
Shimbhu Dayal demanded Rs. 45,000/- by saying that at the time of marriage
they were expecting Rs. 1,50,000/- in cash would be given, but their expectation
was not fulfilled, so now Rs. 45,000/- must be paid. Therefore, in absence of
such evidence the offence punishable under Section 498A Indian Penal Code
cannot be said to be made out.

So far as offence under Section 201 Indian Penal Code is concerned, for
such an offence to be made out it has to be proved by the prosecution that

143
evidence of commission of an offence got disappeared with the intention of
screening the offender from the legal punishment. In the present case, as
prosecution has failed to prove that the death of deceased Smt. Mohini was
caused otherwise then in natural circumstances, it cannot be said that the funeral
was performed without efforts being made to conduct postmortem in order to
destroy evidence of some offence committed by the appellants or any other
persons.

The court held that the learned Trial Court without considering the
requirements of relevant legal provisions in a proper perspective wrongly came
to a conclusion that appellants are guilty of the offences. I am of the considered
view that from the evidence available on record, the appellants cannot be held
guilty of offences levelled against them. Consequently, the appeal filed on behalf
of the appellants is allowed and the judgment of conviction and order of
sentence dated 15.2.2005 passed by learned Special Judge (Woman Atrocities
and Dowry Cases), Jaipur City, Jaipur in Sessions Case is set aside and the
appellants are acquitted of the charges levelled against them. The appellants
Narain Lal S/o. Shri Bhagwan Sahai and Smt. Omi W/o. Shri Narain Lal are on
bail, their bail bonds are cancelled. If the appellant Shimbhu Dayal S/o. Shri
Narain Lal is still in custody, he shall be immediately set free, if not required in
any other case.

In the case of Suresh Chandra Jana and Ors. v. The State of West
Bengal and Ors.182, the accused was alleged to have raped the deceased. The
prosecution of the rape case was pending at the time of the incident, when the
Accused had thrown acid at the deceased which caused severe burn injuries to
the body of the deceased. The Trial Court after a full fledged trial had convicted
the Accused/Respondent under Section 302 of Code. Being dissatisfied, the
Accused approached the High Court on appeal in Death Reference. The High

182
Criminal Appeal Nos. 31 and 32 of 2008, decided on 11.08.2017, in the Supreme Court of India.

144
Court while allowing appeal and dismissing the death reference, acquitted the
Accused on hyper technical grounds of delay and laches in the investigation and
prosecution. Aggrieved by the acquittal, complainant as well as the State had
filed these appeals.

The court held that :

(i) In criminal cases, doctors inevitably play a very important role, they have a
bounden duty to maintain professionalism in assessing situation and arranging
for a dying declaration to be recorded. Moreover he should have strictly
maintained the case record which was very crucial for successful prosecution.
The basic requirement that a trial must be fair was crucial for any civilized
criminal justice system. It was essential in a society which recognizes human
rights and was based on values such as freedoms, the Rule of law, democracy
and openness. The whole purpose of the trial was to convict the guilty and at the
same time to protect the innocent. In this process Courts should always be in
search of the truth and should come to the conclusion, based on the facts and
circumstances of each case, without defeating the very purpose of justice.

(ii) The High Court had failed to appreciate the fact that Sub Inspector had
specifically stated that he did make an attempt to record the dying declaration of
the victim, but the Medical Officer. The victim had specifically mentioned in her
report about the motive on the part of the Accused-Respondent, who had
allegedly raped her. The prosecution story-given in the First Information Report
also gets corroboration from the statement of nephew of the victim.

(iii) The High Court had erred in holding Accused-Respondent not guilty. The
charge of offence punishable under Section 302 of Code was fully established on
the record as against Accused-Respondent as found by the Trial Court. So far as
other Accused was concerned, undoubtedly he had no motive to commit the
crime, nor was it found that he was having acid with him, as such, it could not be
said that he had any common intention with Accused-Respondent to cause burn
injuries with acid on the victim. It is possible that he might have accompanied

145
Accused to pressurize the victim to withdraw the rape case against him as he was
witness in said case, As such, taking such fact into consideration by the High
Court to hold him not guilty beyond reasonable doubt, could not be said to be
erroneous. Acquittal of Accused-Respondent was set aside.

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 CHAPTER–VI
CONCLUSION AND SUGGESTIONS

The study also analyze the status of women in various area like freedom
movements, political participation etc. The study also reveals that Indian women
have somewhat lower status then that of men in spite of many efforts undertaken
by the government and constitution of India. She also has to suffer various
crimes that are describes here. The study provides various legal and
constitutional remedies to improve her position. Thus study concludes by an
observation that access to education and employment are only the tool that
enable them to achieve their goals however it depends largely on the attitude of
the people towards gender equality.

Right from the time of inception of this world, the women, irrespective of
religion, race or region have been the most affected victims of this social
differentiation and they have even been considered as mere chattel. Muslim
women have also not been the exception of this practice before the revelation of
Quran.183

Judiciary does not acknowledge the supremacy of the Parliament because

judges make laws for the land only in the course of interpreting the statutes
enacted by the Parliament and that too while settling the disputes that come up
before them. But a tug of war between the Legislature and the Judiciary – cuts
both the institutions in a sorry figure. When progressive judgments like the one
in Shah Bane’s case184 are sentenced to death by the Parliament, the Parliament
becomes a laughing stock and the Courts may be seen by the public at large as
just “paper tigers”. What is required is not tug of war but a “Jugalbandi’
harmonious blending of these two institutions which play a major role in
regulating the lives of the public.185

183
AIR 1995 Journal Section, at p. 145.
184
AIR 1985 SC 945
185
AIR 1995 Journal Section at p. 138,

147
 The offence of rape in its simplest term is the ravishment of a woman,
without her consent, by force, fear or fraud, or as the carnal knowledge of a
woman by force against her will. ‘Rape or Raptus is when a man hath carnal
knowledge of a woman by force and against her will; or, as expressed more
fully, rape is the carnal knowledge of any woman, above the age of particular
years, against her will; or of a woman child, under that age, with or against her
will. The essential words in an indictment for rape are rapuit and carnaliter
cognovits; but carnaliter cognovits, nor any circumlocution without the word
rapuit, are not sufficient in a legal sense to express rape. In the crime of rape,
carnal knowledge means the penetration to any slightest degree of the organ
alleged to have been carnally known by the male organ of generation. 186

Where it is necessary to prove sexual intercourse (whether natural or

unnatural), it shall not be necessary to prove the completion of the intercourse by
the emission of seed, but the intercourse shall be deemed complete upon proof of
penetration only.

Sexual violence, apart from being a dehumanizing act, is an unlawful

intrusion on the right of privacy and sanctity of a female. It is a serious blow to
her supreme honour and offends her self-esteem and dignity-it degrades and
humiliates the victim and where the victim is a helpless innocent child or a
minor, it leaves behind a traumatic experience. A rapist not only causes physical
injuries hut more indelibly leaves a scar on the most cherished possession of a
woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is
not only 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 deep
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 of the Constitution of India. The Courts are,
therefore, expected to deal with cases of sexual crime against women with

186
Aman Kumar v. State of Haryana, 2004 Cri LJ 1399 at p. 1402 (SC)

148
utmost sensitivity. Such cases need to be dealt with sternly and severely. A
socially sensitized Judge is a better statutory armour in cases of crime against
women than long clauses of penal provisions, containing complex exceptions
and provisos.187

Other areas of federal law which warrant some further scrutiny in this
context include banking and insurance, and the now well-recognized
phenomenon of ‘sexually transmitted debt’, or unconscionable guarantees;
customs law regulating the importation of pornography and other material which
is violent or contributes to the maintenance of women ina position of
disadvantage; broadcasting law and the ways in which vilification of women is
dealt with; employment, law and the centrality of sexual harassment as an
occupational health and safety issue.

Violence against women is a technical term used to collectively refer to

violent acts that are primarily or exclusively committed against women. Similar
to a hate crime, this type of violence targets a specific group with the victim’s
gender as a primary motive.

The status of woman has also been a concern of the international

organizations and agencies. Nature created man and woman equal and, therefore,
guarantees equal status to both man and woman. The charter of the United
Nations Organization express in its preamble a faith in fundamental human right,
in the dignity and worth of the human being. In equal rights of men and women
and to promote social progress and better standards of life in larger freedom.
Article 1 of the Charter emphatically objectives of the United Nations is of
promoting and encouraging respect for human rights and for fundamental
freedom for all without distinction as to race, sex, language or religion. The
Charter declares that the discrimination of individuals or groups of individuals
cannot exist in a civilised society.

187
Dinesh alias Buddha v. State of Rajasthan, AIR 2006 SC 1267.

149
 Human trafficking is when a person is forced or tricked into working in
terrible conditions. Victims of human trafficking may be kidnapped, for
example. They also may be lured with false promises of a better life in a new
country. A person who is trafficked may be drugged, locked up, beaten, starved,
or made to work for many hours a day. Types of work a trafficked person may
be forced to do include prostitution, farm work, cleaning, childcare, or
sweatshop work.

The offence of rape in its simplest term is the ravishment of a woman,

without her consent, by force, fear or fraud, or as the carnal knowledge of a
woman by force against her will. ‘Rape or Raptus is when a man hath carnal
knowledge of a woman by force and against her will; or, as expressed more
fully, rape is the carnal knowledge of any woman, above the age of particular
years, against her will; or of a woman child, under that age, with or against her
will. The essential words in an indictment for rape are rapuit and carnaliter
cognovit; but carnaliter cognovit, nor any circumlocution without the word
rapuit, are not sufficient in a legal sense to express rape. In the crime of rape,
carnal knowledge means the penetration to any slightest degree of the organ
alleged to have been carnally known by the male organ of generation.

Sexual assault or abuse is any type of sexual activity that a person does
not agree to, including:

 Rape or attempted rape

 Touching your body or making you touch someone else’s

 Incest or sexual contact with a child

 Someone watching or photographing you in sexual situations

 Someone exposing his or her body to you.

Rape is a particular crime, it’s different than assault. People who commit
rape commit it for different reasons than people who commit assaults. Changing
the name of the crime isn’t going to do any good. It’s going to be throwing the

150
issue under the rug, so to speak. This would be very detrimental to the work with
rape victims, because rape is not simply form of assault.

Sexual violence, apart from being a dehumanizing act, is an unlawful

intrusion on the right of privacy and sanctity of a female. It is a serious blow to
her supreme honour and offends her selfesteem and dignity-it degrades and
humiliates the victim and where the victim is a helpless innocent child or a
minor, it leaves behind a traumatic experience. A rapist not only causes physical
injuries hut more indelibly leaves a scar on the most cherished possession of a
woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is
not only a crime against the person of a woman, it is a crime against the entire
society.

The word ‘modesty’ is not defined in the Indian Penal Code. The shorter
Oxford Dictionary (Third Edn.) defines the word modesty’ in relation to woman
as follows:

“Decorous in manner and conduct; not forward or low; Shame-fast,

Scrupulously chaste”.

Modesty can be described as the quality of being modesty, and in relation

to woman, “womanly propriety of behaviour; scrupulous chastity of thought,
speech and conduct”. It is the reserve or sense of shame proceeding from
estimative aversion to impure or coarse suggestions.

Essential ingredients of the offence punishable under Section 354, I.P.C.,

are that the person assaulted must be a woman, and the accused must have used
criminal force on her intending thereby to outrage her modesty. What constitutes
an outrage to female modesty is nowhere defined. The essence of a woman’s
modesty is her sex. The culpable intention of the accused is the crux of the
matter. The reaction of the woman is very relevant, but its absence is not always
decisive. Modesty in this Section is an attribute associated with female human
beings as a class. It is a virtue which attaches to a female owing to her sex. The
act of pulling a woman, removing her dress coupled with a request for sexual
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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
without any deliberate intention having such outrage alone for its object.

Crime is a part of the background to many legal disputes, even though it

is less frequently the central issue before a court or tribunal. The examples above
are merely illustrations. Many others could have been chosen to make the same
point.

Suggestions and observations:

1. A wider social movement of educating women of their rights, to conquer

the menace, is needed more particularly in rural areas where women are
still largely uneducated and less aware of their rights and fall an easy prey
to their exploitation.

2. It is expected that the courts would deal with such cases in a more
realistic manner and not allow the criminals to escape on account of
procedural technicalities or insignificant lacunae in the evidence as
otherwise the criminals would receive encouragement and the victims of
the crime would be totally discouraged by the crime going unpunished.

3. The courts are expected to be sensitive in cases involving crime against

women. The verdict of acquittal made by the trial court in the case is an
apt illustration of the lack of sensitivity on the part of the trial court.

4. Another fact is delay in filing of F.I.R. in a case of rape it is dependent

upon the facts of each case. The victim does not immediately rush to the
police station to lodge an F.I.R. She has too overcome the trauma. There
is consultation with the family members and a decision is taken. All these
circumstances are to be kept in mind.

5. It is noticed that some judges unnecessarily gives emphasis on the

presence of spermatozoa in the victim’s private parts. It is to be borne in
mind that the definition of rape has a different connotation. A mild

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 penetration would meet the ingredients of the crime. There may be
several circumstances which affect the presence of the spermatozoa and
hence, emphasis on the same is unwarranted.

6. In this regard, it is also suggested that the burden of proof should always
lie upon woman to prove that she has been subjected to cruelty by her in-
laws. Simultaneously, parents of victim should try to solve the dispute
through reconciliation.

7. Legal Service Authorities of the State may do remarkable job in this

regard. So, in dealing with cases of Section 498-A, woman magistrate and
woman advocates should be there, so there will be no scope of partiality
and biasness, as they will be in a strong position to deal with such cases.
And no permission from magistrate shall be required to arrest a person.
Real facts should be studied and speedy trial should be there. Apart from
it, Legal Service Authorities can play a vital role in providing justice to
the victim who has been actually abused. To make further coordination
between police and Legal Service Authorities, meetings can be held time
to time. Some provisions or regulations can be brought into light to make
them function together.

In real sense, the victim who has suffered severely is not able to
lodge FIR because of the threat that in case, she will not be able to live
with her in-laws and her parents are not in a position to take care of her. It
is a very crucial problem which is impliedly spreading its roots.
Government should take certain measures to overcome it. For
accomplishing this purpose, Nari Vikas Bhawan can be made where they
have been provided jobs like sewing, household works etc. and should be
provided meal two times per day at very nominal charges.

8. Awareness among rural folk should also be speeded because it has been
found that Section 498A Indian Penal Code has been widely misused
because high class women have knowledge about it and when they used

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 to file FIR they get full support by her family. But the needy one, who is
really suffering and wants care and attention, is not able to get justice due
to lack of awareness and help. To make aware more and more women
victims about it, it is very necessary to give them preliminary knowledge
at school level only, so that they can came to know about their rights and
can sustain in a better environment. Apart from it, repudiated and
dignified NGOs can start certain programmes and establish certain camps
in rural areas for further development of women.

9. The establishment of Women Cell will be a more progressive step in this

regard. Thus, the most prominent step which can be taken is
establishment of Women Cell in each district, so that the victim can get
justice as soon as possible. They can conduct counseling on a small scale
and can play a vital role in carrying out investigation process. They can
also help the victim in other sense, like providing her a good
environment, education etc. and it will form a threat in the minds of in-
laws which will lead to depletion in harassment and cruelty. Women Cell
may include a woman constable, an investigation officer (female), a
doctor and an educationalist.

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 BIBLIOGRAPHY
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 15. Flavia Agnes, ‘Law and Gender Inequality’, Oxford University Press,
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ACTS:
1. The Commission of Sati (Prevention) Act, 1987.
2. The Criminal Law (Amendment) Act, 2013

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 3. The Criminal Procedure Code, 1973.
4. The Dowry Prohibition (Amendment) Act, 1986.
5. The Dowry Prohibition Act, 1961.
6. The Immoral Traffic (Prevention) Act, 1956
7. The Indecent Representation of Women (Prohibition) Act, 1986
8. The Indian Evidence Act, 1872.
9. The Indian Penal Code, 1860.
10. The Maternity Benefit Act, 1961
11. The Medical Termination of Pregnancy Act, 1971

JOURNALS AND REPORTS:

1. All Indian Reporter
2. Annual Survey of India Law
3. Criminal Law Journal
4. Criminal Law Reporter
5. Journal of India Law Institute
6. Journal of Legal Studies
7. Jaipur Law Journal
8. Supreme Court Cases.
9. Law Commission of India Forty Second Report on Indian Penal Code.

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